No.  6242 


IN  THB 

®0ttrt  0f  f lli«0k 

February  Term,  A.  D.  1909. 


PEOPLE  OF  THE  STATE  OF  ILLINOIS, 
ex  rel.  CHARLES  S.  DENEEN,  Gover- 
nor, and  WILLIAM  H.  STEAD, 
Attorney  General) 

Appellant, 

vs. 

ECONOMY  LIGHT  & POWER 
COMPANY, 

AppeUet. 


STATEMENT  OF  THE  CASE, 

BRIEF  OF  POINTS  AND  AUTHORITIES, 
ARGUMENT  FOR  APPELLANT. 

APPENDIX. 

I.  Opinion  of  Trial  Court, 
n.  Monographs  of  Dr.  W.  F.  Poole 
and  Governor  Edward  Coles. 

III.  Early  Documents. 

WILLIAM  H.  STEAD, 

Attorney  General^ 

WALTER  REEVES, 
MERRITT  STARR. 

Special  Counsel. 

For  Appellant. 

PECK,  MILLER  & STARR, 

REEVES,  OSBORN  & GRIGGS. 

Of  Counsel  for  Appellant. 


CHANCERY. 

Appeal  from 

Circuit  Court, 

Grimdy  County. 


Honorable  Julian  W.  Mack, 
(temporarily  sitting  as  Judge  of 
said  Court  at  the  request  of 
Honorable  Samuel  C.  Stouqh, 
Judge  of  said  Court),  Judge, 
Presiding. 


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IN  THE 


x-e  g3  s 


of  §Uinais. 

ORIGINAL  RECORD  RETURNED  TO 
October  Term,  A.  D.  1908, 

AND  CAUSE  CONTINUED  TO 
February  Term,  A.  D.  1909. 


PEOPLE  OF  THE  STATE  OF  ILLINOIS, 
ex  rel.  CHARLES  S.  DENEEN,  Gover- 
nor, and  WILLIAM  H.  STEAD, 
Attorney  General, 

Appellant^ 

vs, 

ECONOMY  LIGHT  & POWER 
COMPANY. 

Appellee, 


CHANCERY. 

Appeal  from 

Circuit  Court, 

Grundy  County. 


Honorable  Julian  W.  Mack, 
(temporarily  sitting  as  Judge  of 
said  Court  at  the  request  of 
Honorable  Samuel  C.  Stough, 
Judge  of  said  Court),  Judge, 
Presiding. 


STATEMENT  OF  THE  CASE. 

May  it  Please  thei  Court  : 

This  is  an  Information  in  chancery  brought  by  The  People  at 
the  relation  of  the  Governor  and  Attorney  General,  averring  the 
invalidity  of  certain  contracts  made  by  the  Canal  Commissioners 
of  the  State  with  the  defendant  appellee,  and  the  wrongf illness 
of  the  acts  of  the  defendant  as  holder  thereof  in  erecting  a dam  and 
power  house  on  lands  of  the  State  in  the  bed  of  the  Des  Plaines 
Eiver,  which  was  and  is  a navigable  stream,  and  attaching  the 
same  to  the  tow-path  bank  of  tlie  Illinois  and  Michigan  Canal  and 
in  using  the  tow-path  bank  as  a retaining  wall  for  its  water-power 
pool  and  flooding  the  tow-path  bank,  the  riparian  canal  lands  and 
several  miles  of  the  90-foot  strip  of  canal  bank,  which  was  nec- 
essary to  the  canal,  and  was  reserved  from  sale  or  grant  by  law. 

By  the  contracts,  the  Canal  Commissioners  assume  to  authorize 


0110  (iriswold  iuid  liis  assigns  (arid  dofondarit,  afrpellee,  claims  as 
siK'li  assi^Ti)  as  follows: 

I>y  Kxliilrit  A (^^Tirr:  Perpetuat.  Plowage  Contract”)  (Abst. 
)))).  2S-:P))  : 

(1)  To  build  and  maintain  in  iierpetnity  a water-power  dam 
and  other  works  across  tlie  Des  Plaines  liiver  at  and  near  its 


montli  (Ex.  A,  Cl.  1) ; 

(2)  To  attach  (and  maintain  in  ])er])etuity)  the  water-power 
dam  to  tlie  tow-jiatli  and  canal  embankment,  which  was  built  by 
the  canal  authorities  and  is  needed  to  retain  the  canal  waters  in 
place,  and  divert  said  canal  embankment  from  its  necessary  and 
lawful  use  (Ex.  A,  Cl.  4 and  Cl.  9)  ; 

(3)  To  flood  in  perpetuity  the  canal  embankment  next  the 
river  at  the  site  of  such  proposed  dam  and  above  the  same  and 
use  the  canal  embankment  in  perpetuity  as  a retaining  wall  for 
the  water-power  pool  (Ex.  A,  Cl.  2) ; 

(4)  To  flood  in  perpetuity  the  reserved  90-foot  strip  of  land 
bordering  the  canal  and  between  the  canal. and  river  at  the  site  of 
such  proposed  dam  and  for  several  miles  up-stream  above  said 
proposed  dam  (Ex.  A,  Cl.  2) ; 

(5)  To  flow  in  perpetuity  the  canal  riparian  lands  between 
the  Des  Plaines  Piver  and  the  canal  (Ex.  A,  Cl.  2) ; 

(6)  To  raise  the  tow-path,  attach  and  enclose  a levee  thereto, 
use  the  gravel  and  other  material  (building  stone,  piers,  etc.)  of 
the  canal  and  its  aqueduct  in  constructing  such  works  and  per- 
petually maintain  the  same  (Ex.  A,  Clauses  3,  4,  6,  7 and  8)  ; 

(7)  To  enter  upon  or  fill  in  portions  of  the  canal  in  perpetuity 
for  the  puiq^ose  of  maintaining  such  works  (Ex.  A,  Cl.  9) ; 

(8)  To  divert  and  turn  back  from  the  Des  Plaines  River  the 
tributary  stream  known  as  the  Kankakee  Cut-off  and  make  it  run 
backward  and  into  the  Kankakee  River,  as  an  outlet  or  si^illway 
for  high  waters  from  the  water-power  pool  (Ex.  A,  Cl.  5) ; 

(9)  To  convert  the  I.  & M.  Canal,  commonly  called  the  Kan- 
kakee Feeder,  into  a feeder  of  the  water-power  pool  and  in  so 
doing  excavate  and  remove  (i.  e.,  destroy)  so  much  of  the  Caual 
Feeder,  acquired  and  constructed  by  the  State  at  great  expense 
as  part  of  the  canal  (and  which  formerly  fed  the  waters  of  the 


•> 

ft 


l\ankak(H>  ivivor  into  llio  (‘anal),  as  (‘xlcnids  noi-l li vvanlly  arnJ  Ix*- 
yoiul  tlio  l)(‘s  riaines  l\iv(n-  (Kx.  A,  CL  o)  ; 

By  klxliibit  C Ixankakek  CnnDKJt  LnAsn  and  Bivnit  CJon- 

tkact”)  (Al)st.,  F)()-4())  : 

(10)  To  use  the  reinainder  of  tlie  Kankakee  Feeder  as  a tribu- 
tary of  the  defcMidant’s  ])ro|)osed  water-power  })larit  (by  lease, 
Fx.  C,  for  20  years  with  provision  for  renewal  subject  to  right  of 
cancellation  by  the  Canal  Commissioners)  (Ex.  A,  CL  5)  ; 

(11)  To  appropriate  the  waters  of  the  Kankakee  River  and 
empty  them  therel)y  into  defendant’s  water-power  pool  above  the 
dam,  instead  of  letting  them  flow  naturally  into  the  Illinois  below 
(Ex.C); 

By  Exhibit  B (^‘The  40  Year  Lease”)  (Abst.,  pp.  34-35)  : 

(12)  To  lease  for  20  years,  with  a first  right  of  renewal  for  20 
years  more  (in  violation  of  the  statute  which  limited  leases  of  canal 
property  to  20  years)  both  the  90-foot  strip,  the  riparian  tract  of 
canal  lands  in  Section  31  and  part  of  the  Kankakee  Feeder  and 
its  90-foot  strip,  subject  to  the  prior  right  of  flowage  thereof 
(Ex.  B)  ; 

By  Exhibit  J.  (The  Deed)  (Abst.,  pp.  46-47)  : 

(13)  To  sell  by  the  act  of  a clerk  and  convey  the  flooded  and 
leased  riparian  tract  of  canal  lands  between  the  canal  and  the 
river  in  fee  (Ex.  J) ; 

By  Exhibit  K (“The  Pole  Line  Contract”)  (Abst.,  xip.  47-49)  : 

(14)  To  maintain  a line  of  xiower  xioles  and  wires  25  miles  long 
upon  the  tow-path  of  the  canal  (Ex.  K). 


DIVISION  ONE. 

The  State  avers  that  in  making  these  grants  the  Canal  Com- 
missioners went  outside  their  x:)rovince  and  authority  and  acted 
in  violation  of  the  statutes  and  xiolicy  of  the  State;  and  that  these 
contracts  are  void. 


DIVISION  TWO. 

The  State  further  avers  that  by  virtue  of  sundry  canal  statutes 
the  title  to  the  bed  of  the  Des  Plaines  River  in  Section  25,  Town- 
ship 34,  Range  VIII  east  of  the  3d  P.  M.,  in  Grundy  County  where 


4 


apix'lloo  i)r()i)()sos  to  eonstniet  this  dam,  never  left  tlie  State;  that 
th(‘  State  owns  the  !)ed  of  the  river  at  this  })laee;  and  tlie  dam  will 
he  an  intiaision  and  pnrprestnre  upon  its  pro))erty. 


DIVISION  THKEK. 

The  State  further  avers  that  the  Des  Plaines  River  at  the  place 
in  (piestion  and  above  is  a navigable  stream,  and  that  the  erection 
of  this  dam  will  interfere  witli  the  ])ublic  right  in  the  stream,  ob- 
striK't  the  nse  of  the  river  and  constitute  a nuisance. 


The  State  therefore  on  each  of  these  grounds  prays  an  injunc- 
tion against  the  erection  of  the  dam  and  works,  and  for  general 
relief. 

For  convenience  we  present  the  statement  as  to  each  of  these 
three  divisions  separately. 

Other  Pleadings — Decree. 

The  defendant  tiled  an  answer  admitting  the  making  of  the  con- 
tracts and  claiming  as  assignee  thereof,  insisting  on  their  validity 
and  questioning  the  right  of  the  State  at  the  relation  of  the  Gov- 
ernor and  Attorney  General  to  attack  the  contracts.  The  answer 
denied  the  title  of  the  State  to  the  bed  of  the  stream  and  denied, 
that  the  rivei'  was  a navigable  stream. 

The  defendant  alleges  that  prior  to  beginning  work  on  the  dam 
one  Charles  A.  Munroe  submitted  plans  thereof  to  the  AVar  De- 
})artment  of  the  United  States;  that  the  Chief  of  Engineers  of  the 
United  States  Army  referred  the  matter  to  one  Lieut.  Col.  Bixby 
of  the  Corps  of  Engineers  of  the  United  States  Army  to  examine 
and  report  recommendations  thereon;  said  Bixby  negotiated  with 
H.  M.  Snapp  ^^and  the  water-power  representatives,”  and  talked  it 
over  with  Mr.  AVoermann,  and  recommended  that  the  AVar  Depart- 
ment waive  objections  provided  Alunroe  would  agree  to  certain 
])rovisions  in  the  supposed  interest  of  the  Eederal  Government; 
that  thereupon  Robert  Shavv^  Oliver,  Assistant  Secretary  of  AVar, 
sent  a letter  to  Munroe,  stating  that  if  the  conditions  were  com- 
]died  with  in  the  opinion  of  the  Chief  of  Engineers  and  witli  the 


(*()iu*urr('ii('(‘  of  lli('  I )(‘i);irliin‘iit,  llinl,  Hu*  work  as  |)r()))()S(3(l  was  in 
i»’(MUM‘aI  harmony  with  th(‘  work  of  iinpi'ovcmKMil  r(*('omm(‘n(l(Hl  hy 
llio  l)Oar(l  of  khii»iiu‘(‘rs  in  IIons(‘  Dooimuml  and  slating: 

“Inasnnudi,  liowovco',  as  (‘on^ross  has  not  as  y(‘l  anthoi-iz(;d 
the  im])rovonKmt  of  this  riv(‘r,  this  (l(^))arlm(‘nl  (lo(‘s  not 
it  ex})e(iient  to  take  further  and  detinit(‘  aidion  in  the  inatt(*r 
of  approving-  the  plans.” 

Tlie  defendant  admitted  that  thereipion  it  liad  proceeded  with 
tlie  work  of  erecting  tlie  dam  and  |)ower  house. 

Tile  defendant  set  np  divers  deeds,  liy  which  it  claimed  title  to 
the  riparian  lands  in  the  Canal  Sections,  in  which  the  site  of  the 
dam  is  located, — denied  that  the  Canal  Acts  had  the  effect  of 
reserving  the  bed  of  the  river  from  sale;  and  averred  that  it 
owned  the  bed  of  the  river;  and  denied  that  the  90-foot  strip  was 
]iart  of  the  canal,  or  necessary  to  its  use,  or  reserved  from  sale  by 
law. 

The  State  hied  a general  replication  and  the  cause  was  heard 
upon  the  merits,  resulting  in  a decree  dismissing  the  Information 
for  want  of  equity. 


The  Facts  As  to  Canal  Land  Grant — Survey  of  and  Title  to 

90-Foot  Strip. 

By  Act  of  Congress  March  2,  1827  (Stead’s  Canal  Laws,  p.  2),^^ 
the  United  States — 

granted  to  the  State  of  Illinois,  for  the  purpose  of  aiding 
the  said  State  in  opening  a canal  to  unite  the  waters  of  the 
Illinois  Kiver  with  those  of  Lake  Michigan,  a quantity  of  land 
equal  to  one-half  of  hve  sections  in  width,  on  each  side  of  said 
canal,  and  reserving  each  alternate  section  to  the  United 
States,  * * * from  one  end  of  the  said  canal  to  the  other ; 

* * * ? j 

In  selecting  the  canal  lands,  the  odd-numbered  sections  w^ere 
so  selected  and  the  even-numbered  sections  were  reserved  by  the 
United  States. 

By  Section  Id  (Stead’s  Canal  Laws,  p.  32)  the  Act  of  January 

' ,*The  following  abbreviations,  viz. : “Stead’s  Canal  Laws,”  “Canal  Laws,”  “Canal 
Comp.,”  “Comp.  Canal  Laws,”  are  used  to  refer  to  the  compilation  entitled,  “Laws 
of  the  United  States  and  Laws  and  Resolutions  of  the  State  of  Illinois  in  relation 
to  The  Illinois  and  Michigan  Canal,  compiled  by  W.  H.  Stead,  Attorney  General, 
Springfield,  111.,  Phillips  Brothers',  State  Printers.” 


0,  18r)(),  lor  tlio  coiustriietioTi  of  the  canal,  desci'ibed  the  dimensions 
of  the  canal — 

reserving'  ninety  feet  on  eacli  side  of  said  canal,  to  enlarge 
its  ca]aaci’ty.” 

In  lcS4()-7,  wlien  tlie  canal  was  being  laid  out  and  constructed, 
the  Canal  Trustees  caused  a strip  of  land  90  feet  wide  on  each 
side  of  the  canal  to  l)e  laid  out,  surveyed  and  marked  off  as  a 
reserve  strip  from  one  end  of  the  canal  to  the  other;  and  platted 
the  meander  line  of  the  l)es  Plaines  Eiver  from  the  point  marked 
by  the  Government  Land  Survey  of  1821  as  ^^Head  of  Navigation” 
to  its  mouth. 

In  1872,  by  the  Act  of  March  7,  Section  5,  the  Legislature  en- 
acted— 

^Ghat  no  part  of  the  ninety  feet  strip  along  the  canal  * * * 

shall  be  sold.”  (Canal  Comp.,  p.  153.) 

By  the  Act  of  March  27,  1874,  Section  8,  Clause  8,  the  Legisla- 
ture authorized  the  Canal  Commissioners — 

‘‘‘■Eighth — To  sell  and  convey  * * * any  canal  lands 

* * * other  than  those  connected  with  water-poiver  upon 

the  said  canal,  and  the  ninety  feet  strip  * * *”  (Stead’s 

Canal  Laws,  p.  159.) 

By  the  Act  of  April  21,  1899,  the  Legislature  repeated  this  pro- 
vision. (Stead’s  Canal  Laws,  p.  175.) 

This  was  in  force  in  1904,  at  the  time  when  the  contracts  were 
made. 

The  Canal  Commissioners  owned  a strip  of  land  90  feet  wide 
along  the  canal  in  the  section  here  involved,  as  a part  of  the  canal ; 
and  they  also  owned,  as  unsold  canal  lands,  the  riparian  tract  half 
a mile  long  constituting  the  fraction  of  Section  31,  Township  34 
North,  Range  9 East,  which  bordered  the  Des  Plaines  River  and 
lay  between  it  and  the  canal  for  a distance  of  from  half  a mile 
to  a mile  upstream  from  its  mouth. 


KVKN1\S  11)04-5. 


45 IK  (5)ntjiaci’s. 


Ex  1 11  r> IT  A TO 


I N FORMATION 45  I F PFRPFTUAL  EfOWA(;F 


(5)ntraot. 


(Abstract  ])}). 

Se])teinber  2,  ]904,  a contract  between  Canal  Commissioners  and 
Harold  E.  Griswold,  by  wliicli  it  was  recited  and  agreed:  4'hat 
said  Griswold  claims  to  be  riparian  owner  along  Des  Plaines  and 
Illinois  Elvers  in  Grundy  and  Will  Counties ; that  he  is  about  to  im- 
prove Des  Plaines  Eiver  by  a dam  and  other  works  across  its 
mouth  in  Grundy  County,  with  crest  of  such  height  that  pool 
formed  thereby  will  he  on  a level  with  Lake  Joliet  (a  portion  of 
said  Des  Plaines  Eiver  in  Will  County),  and  is  about  to  improve 
said  Illinois  Eiver  by  deepening  its  channel  below  the  dam  in  Sec- 
tion 25,  34  N.,  E.  8 East;  that  the  State  is  a riparian  owner  at 
different  points  on  Des  Plaines  and  Illinois  Eivers  within  terri- 
tory covered  by  said  contract,  as  well  as  owner  of  lands  under 
control  of  Canal  Commissioners,  not  connected  with  water-power 
upon  Illinois  & Michigan  Canal ; that  said  riparian  rights  and  said 
land  have  never  produced  a revenue;  that  said  lands  are  unproduc- 
tive of  revenue,  swamj^y,  unfit  for  cultivation  and  partially  cov- 
ered with  water;  that  said  lands  are  so  situated  that  its  riparian 
rights  cannot  be  made  available  to  the  State  to  create  water  power ; 
that  Griswold  is  desirous  of  obtaining  right  to  use,  and  overflow 
by  said  dam  (in  such  manner  as  will  not  interfere  with  naviga- 
tion on  the  Illinois  & Michigan  Canal)  so  much  of  said  property 
as  may  be  necessary  in  constructing  dam  and  other  works  and  in 
deepening  the  channel  of  the  Illinois  Eiver. 

Therefore,  and  in  consideration  of  premises  and  of  $2,000  paid 
to  Canal  Commissioners,  it  is  agreed: 

1st.  Canal  Commissioners  consent  that  Griswold  shall  have 
right  and  authority  in  so  improving  the  Des  Plaines  Eiver,  to 
construct  a dam  and  other  works  across  the  Des  Plaines  or  Illi- 
nois Eiver  at  a point  near  confluence  of  Des  Plaines  and  Kankakee 
Eivers  in  Grundy  County,  Illinois,  with  crest  at  elevation  not  ex- 
ceeding minus  73.2  Chicago  datum,  but  in  no  event  shall  back 


s 


water  eauscul  thereby  extend  })ey()nd  iiortherty  limits  of  ^^Lake 
Joliet”  (a  wide  poi'tion  of  Des  Plaines  River  about  six  miles  long, 
south  of  Joliet,  Will  County)  ; tliaf  Griswold  ma}^  exeavate  in  and 
deejxm  ehannel  of  Illinois  River  in  Section  20. 

2d.  (jriswold  sliall  liave  right  to  flow: 

(a)  The  ninety-foot  reserve  strip  of  Illinois  & Michigan  Canal 
in  Sections  25  and  3t),  Townshij)  ?A  North,  Range  8,  Grundy  County, 
etc.,  and  in  Sections  51,  30,  29  and  20,  T.  3-t  N.,  Range  9,  in  5Vill 
County,  up  to  the  canal  hank; 

(h)  Also  so  much  of  the  north  fraction  of  said  Section  31,  as 
lies  south  of  the  ninety-foot  reserve  strij)  along  the  tow-])ath  side 
of  'the  Illinois  & Michigan  Canal,  where  same  may  he  overflowed 
hy  construction  of  said  dam  and  other  works  with  said  crest; 

(c)  Together  with  right  to  flow  water  u])  against  the  tow-path 
hank  of  the  Illinois  & Michigan  Canal  in  said  sections,  provided 
the  tow-path  shall  he  ])rot9cted  and  preserved  as  hereafter  pro- 
vided. 

3d.  . Gi'iswold  shall  have  right  to  excavate  in  and  remove  so 
much  of  the  Kankakee  Feeder  (an  abandoned  feeder  of  Illinois 
(fc  Michigan  Canal)  lying  north  the  Des  Plaines  River,  and  soiitli 
of  the  ninety-foot  strip,  in  Section  21,  T.  34,  R.  9,  in  AVill  County, 
as  may  he  necessary  to  discharge  the  waters  of  the  Des  Plaines 
River  through  said  Section  31  in  a proper  manner,  and  have  j)rivi- 
lege  of  removing  the  old  aqueduct  piers  in  said  section. 

4th.  Griswold  shall  have  right  to  erect,  attach,  repair  and 
maintain  said  dam  and  other  works  up  against  the  tow-path  hank 
of  the  Illinois  & Michigan  Canal  in  said  Section  25,  hut  not  so  as 
to  interfere  in  any  manner  with  the  use  of  said  tow-path  in  con- 
nection with  said  canal. 

5th.  Griswold  shall  have  right  to  turn  and  divert  from  Des 
Plaines  River  into  Kankakee  River  a stream  of  water  called  ‘Dvan- 
kakee  Cut-off,”  through,  over  and  across  said  Kankakee  Feeder 
and  ninety-foot  strip  on  each  side  of  said  Feeder  in  Section  5,  33 
N.,  R.  9,  etc.,  and  Griswold  is  granted  right  to  construct  on  hanks 
of  said  Feeder  controlling  gates  as  a flood  protection  from  said 
Kankakee  River. 

fith.  Griswold  is  charged  with  duty,  subject  to  direction  of 


('niiiil  romniissioiK'rs  or  ()lli(*r  oHioxo'S  or  lo  i-jiiso  lli(‘  lovv- 

or  hank  of  ilio  Illinois  & Mic'lii^ari  (kuial  from  its  f)r(;S(;rit 
not  loss  than  two  root  and  to  any  additional  li(n<ijlit  that  may  ])(t 
ne(*essary  to  ])i’ovont  ovorllovv  and  lo  perpclnally  iheroaftcr  ninln- 
laiii  fhc  sa}ii(>  in  pood  condilion.  Raising  of  tow-i)atli  shall  (ix- 
tond  from  point  in  Grundy  County  where  dam  or  otlier  strnetnre 
intersects  said  tow-})ath  hank,  to  L()(‘k  No.  7 in  S(‘etion  17,  T.  ‘U  X., 
R.  9 East,  et(‘.,  and  when  raised  the  width  of  top  of  tow-path  })ank 
shall  ('oiiform  to  present  width  of  tow-path. 

7th.  Permission  and  authority  is  given  Griswold  to  attach  and 
close  a levee  to  the  tow-path  hank  of  the  Illinois  & Michigan  Canal 
at  ])oint  in  said  tow-path  hank  where  the  east  and  west  half-sec- 
tion line  of  Section  20,  T.  34  N.,  B.  9 East,  intersects  said  tow-])ath 
hank ; and  also  to  construct  levees  on  east  and  west  hanks  of  Du 
Page  Biver  from  the  dam  across  said  river  to  north  line  of  Sec- 
tion 20,  T.  34  N.,  B.  9 East,  and  attach  and  close  said  levees  to 
west  and  east  sides  respectively  of  said  dam  across  the  DuPage 
Biver  in  said  Section  17,  as  indicated  hy  a blue  print  attached. 

8th.  Permission  is  given  Griswold  to  use  gravel  or  material 
lying  along  said  Illinois  & Michigan  Canal,  property  of  the  State, 
as  may  he  necessary  to  raise  said  tow-path  hank  of  said  Illinois 
Michigan  Canal.  Such  material  to  he  taken  from  places  indicated 
or  approved  hy  superintendent  or  other  agent  designated  hy  Canal 
Commissioners  or  other  officers  in  charge. 

9th.  Griswold  is  authorized  to  enter  upon  lands  of  the  State, 
part  and  parcel  of  the  Illinois  & Michigan  Canal  and  upon  said 
Canal  itself  in  manner  and  to  the  extent  that  shall  he  necessary  to 
raise  and  maintain  tow-])ath  as  above  ])rovided,  and  attach  and 
huild  said  dam  or  works  onto  said  tow-path  hank  as  herein  pro- 
vided, and  repair,  maintain  or  renew  same  as  shall  become  neces- 
sary to  preservation  thereof. 

10th.  Griswold  shall  raise  certain  buildings  owned  hy  the  State 
and  used  in  connection  with  the  Illinois  & Michigan  Canal,  level 
with  tow-path  when  same  is  raised,  and  furnish  two  acres  to  he 
used  by  the  Canal  Commissioners  in  connection  with  said  huildings 
as  garden.  Said  work  shall  he  done  to  satisfaction  of  superintend- 
ent or  agent  in  charge  of  said  canal. 


10 


1 Itli.  The  work  sliall  l)e  done  under  supervision  and  to  the  sat- 
istacdion  of  Canal  C^oinmissioners  or  tlieir  agent  and  not  otherwise; 
and  when  (‘oinpleted  shall  at  all  times  l)e  ke]:)t  and  maintained  hy 
said  second  party  under  like  supervision  and  to  ap]:)roval  of  Canal 
(k)mniissioners  07  their  agent. 

T2th.  Cost  of  inspecting  the  work  shall  be  paid  by  Griswold. 

KUh.  Griswold  shall  be  responsible  for  and  pay  damages  that 
may  be  sustained  l)y  State,  or  Canal  Commissioners,  or  canal  prop- 
erty, or  persons  or  property  using  said  Illinois  & Michigan  Canal, 
or  occasioned  by  construction  of  the  works  or  made  by  second 
])arty,  or  in  repair  or  maintenance  thereof,  or  occasioned  by  use  of 
dam,  or  works.  This  agreement  shall  be  binding  upon  and  inure 
to  the  benefit  of  the  respeotive  successors  and  assigns  of  the  parties 
hereto. 


Exhibit  B — Lease. 

(Abstract,  pp.  34-35.) 

September  2,  1904,  the  Canal  Commissioners  made  a lease  to 
Griswold,  purporting  to  lease: 

The  ninety-foot  strip  along  the  tow-path  side  and  outside  the 
tow-path  of  Illinois  & Michigan  Canal  in  said  Sections  25  and  36; 

And  said  ninety-foot  strip  in  said  sections  31,  30,  29  and  20,  in 
Township  34  North,  Range  9 East; 

Also  that  part  of  north  half  of  said  Section  31  lying  south  of  the 
ninety-foot  reserve  strip  along  the  tow-path  side  of  said  canal. 

Also  that  i3art  of  Kankakee  Feeder  and  ninety-foot  strip  on  each 
side  of  said  Feeder  in  said  Section -31,  Township  34  North,  Range 
9 East,  and  in  Section  5,  T.  33  N.,  R.  9 East,  etc.  Term : From 
September  2,  1904,  to  September  2,  1924,  and  is  made  subject  to 
contract.  Exhibit  A.  Consideration  for  said  lease  is  $500  for  the 
full  term.  Said  lease  charges  Griswold  with  knowledge  of  all  the 
provisions  contained  in  Exhibit  A.  This  lease  also  provides  that 
Griswold  shall  have  first  right  to  release  said  premises  at  expira- 
tion of  said  lease  by  paying  therefor  as  much  as  shall  be  offered  by 
any  other  person  or  party  therefor.  Provided,  however,  such  rent- 


1 1 

III  may,  at  option  of  (Janal  ( ^mimissiomn-s,  Ixi  (iximI  hy  np- 

pi'aisors,  hiii,  in  no  ovoni  for  loss  than  anionnt  tixcul  in  lliis  l(;as(?. 

(triswold  oovoivanis  am]  a^roos  tliat  lio  will,  and  lior(;l)y  offors  to 
pay  the  saino  roiital  as  Iioroinliororo  a^r(‘od  to  ho  [laid  for  anotlior 
tonn  of  twonty  yoars,  to  he^'in  at  the  exipiration  of  the  term  liorxdiy 
granted. 

hi  ease  Griswold  shall  desire  to  re-rent  said  proyierty  for  a 
further  term  of  twenty  years,  he  shall  notify  the  said  Canal  Com- 
missioners in  writing  at  least  one  year  before  the  expiration  of  the 
20  years.  The  covenants  herein  shall  extend  to  and  he  binding  upon 
the  heirs,  executors,  administrators,  successors  and  assigns  of  the 
parties  to  the  lease. 


Exhibit  C — Kankakee  Feeder  Lease  and  River  Contract. 

(Abstract,  pp.  36-40.) 

August  8,  1905,  Canal  Commissioners  again  contracted  in  writing 
with  said  Griswold,  reciting  that  Griswmld  has  applied  to  Canal 
Commissioners  to  lease : 

Right  of  State  to  divert  waters  of  Kankakee  River  into  Kan- 
kakee Feeder  and  discharge  same  into  the  Des  Plaines  River  in 
Section  31,  T.  34  N.,  R.  9 East,  etc. 

Also  right  of  State  to  reconstruct  State  dam  across  Kankakee 
River  in  Section  9,  T.  33  N.,  R.  9 Fast. 

And  right  of  State  to  repair  banks  of  Kankakee  Feeder  and  con- 
struct at  each  end  of  feeder  suitable  gates  for  controlling  discharge 
of  waters  through  said  feeder. 

Recites  that  the  A.,  T.  & S.  F.  R’y  Co.,  and  the  C.  & A.  R’y 
Co.,  have  made  sejiarate  fills  or  embankments  across  said 
feeder  in  Section  9,  witli  permission  of  Canal  Commissioners, 
and  are  using  same  as  ])art  of  road-beds  across  said  feeder. 
Wherefore,  in  consideration  of  premises,  covenants  and  agree- 
ments of  Griswold  hereinafter  following. 

His  aplication  is  granted;  and  Canal  Commissioners  lease  to 
Griswold  the  rights  of  the  State  now  within  control  of  Canal  Com- 
missioners, to  wit: 


SiK'li  rig-lit  as  is  now  imder  control  of  Canal  Commissioners 
to  divert  waters  of  Kankakee  River  into  Kankakee  Feeder  and 
discharge  same  into  l)es  Plaines  River  in  Section  31; 

together  witli  riglit  of  State  now  under  control  of  Canal  Com- 
missioners to  restore  and  reconstruct  dam  across  Kankakee  River 
in  Section  9,  but  not  liigher  than  heretofore. 

Also  right  of  State  within  control  of  Canal  Commissioners  to 
construct  at  each  end  of  Kankakee  Feeder  suitable  gates  for  con- 
trolling discharge  of  waters  of  Kankakee  River  through  such 
feeder; 

And  such  right  as  Canal  Commissioners  have  to  enter  upon 
Kankakee  Feeder  and  dam  in  connection  therewith,  for  repairing 
banks  of  feeder,  or  the  dam  across  Kankakee  River,  or  gates  at 
each  end  of  Feeder.  Term:  Twenty  years  from  date  (August 
8,  1905),  subject  to  rights  of  said  railways  and  to  provisions  of 
certain  leases  heretofore  made  to  Harold  F.  Griswold  and 
Charles  A.  Munroe. 

Consideration — $150  per  year. 

Griswold  shall  have  the  right  to  cancel  lease  at  any  time  at 
his  option  after  five  years  from  date;  and  at  expiration  of  or 
termination  otherwise,  Griswold  shall  restore  said  dam  and  feeder 
to  present  condition  and  restore  flowage  of  all  water  to  present 
channel  unless  directed  not  to  do  so. 

Griswold  shall  save  and  keep  harmless  the  Canal  Commissioners 
from  all  damages  growing  out  of  the  work  which  said  Griswold 
shall  or  may  do,  and  before  any  work  is  done  under  this  contract 
Griswold  shall  give  a bond  of  indemnity  to  protect  Canal  Com- 
missioners and  State. 

Provides  for  the  extension  of  the  lease  for  the  additional  twenty 
years. 

The  right  is  reserved  to  the  Canal  Commissioners  to  cancel  this 
lease  whenever  they  shall  deem  it  to  be  the  best  interests  of  the 
State  to  do  so. 


I^]\lllinT  J Df.KI)  of  Ivll’AltlAN  ^rilAd’. 

( Abst ra('i,  |)|).  4(5-47.) 

January  (5,  1^)05,  ("Jarial  ('^oinini.ssioiun\s  for  tlio  consideration  of 
$500,  oxecnted  to  said  Harold  T.  (irisVold  a deed  to  the  riparian 
tract  in  Section  31,  T.  34  N.,  11.  9,  in  Will  County,  between  tlie 
Canal  and  the  Des  Plaines;  being  tlie  same  premises  mentioned 
in  the  previous  leases  and  contracts,  reserving,  however,  from  said 
deed  the  ninety-foot  strip  of  land  on  the  south  side  of  the  canal 
and  bordering  thereon.  The  deed  adds  that  it  is  ^hsubject,  how- 
ever, to  the  terms,  conditions  and  provisions  of  the  flowage  con- 
tract and  lease  made  with  said  Harold  T.  Griswold  and  bearing- 
date  September  second  (2nd),  A.  D.,  1904,  ivliicJi  terms ^ conditions 
and  provisions  still  remain  in  fidl  force  and  shall  he  fidlyJcept  and 
performed.’’ 


Exhibit  K — ^‘Pole  Line  Contract.'’^ 

(Abstract,  pp.  47-49.) 

September  2,  1904,  the  Canal  Commissioners  made  another 
written  contract  with  Griswold  and  his  successors  and  assigns 
purporting  for  the  consideration  of  $750,  to  authorize  the  said 
Griswmld  to  place  and  thereafter  maintain  a line  of  poles  and  wires 
along  and  upon  the  berm  baidv,  tow-})ath  and  land  lielonging  to  the 
State  of  Illinois,  part  and  parcel  of  the  Illinois  & Michigan  Canal 
lands,  for  a distance  of  some  twenty-five  miles  or  more,  viz.,  from 
the  west  line  of  Section  25,  T.  34  N.,  R.  8,  Grundy  County  to  Robey 
street,  Joliet,  Will  County. 

The  Making  of  the  Contracts. 

In  the  spring  of  1904  Mr.  Charles  A.  Munroe  began  negotiations 
with  the  Canal  Commissioners  to  obtain  a series  of  contracts,  con- 
cessions, privileges,  leases  and  deeds.  The  evidence  shows  that 
these  negotiations  began  in  the  spring  of  1904  and  continued,  sub- 
stantially without  interruption,  until  the  several  contracts,  leases 
and  deeds  were  obtained. 


14 


As  to  tlie  ordei*  of  these  events,  Coniinissioner  Sackett  testi- 
fied : 

“It  was  ill  Feliriiary  or  March,  1904,  that  Mr.  Munroe  sap- 
jieared  witli  a i)ro])osition  to  aciiuire  a lease  or  a right  from 
tlie  Commissioners  of  their  jiroperty  next  the  Des  Plaines. 
It  was  merely  a discussion  whether  we  felt  that  proper  con- 
sideration of  canal  operation  would  permit  the  consideration 
of  the  matter  at  all.  Mr.  Munroe  was  present  at  the  next 
meeting.  The  matter  was  under  discussion  at  numerous  meet- 
ings covering  several  months.  * * * ^ proposition 

to  lease  lands  and  a right  of  fiowage  along  the  tow-path;  at- 
taching the  dam  to  the  tow-])ath  had  been  discussed.  He 
wanted  to  flow  from  the  month  of  the  river  back  to  Channahon. 
* * * It  was  proposed  to  flow  npon  and  up  against  the 

tow-])ath.  * * * The  matters  considered  by  the  Canal 

Commissioners  were  (1)  the  right  to  flow  water  along  the 
canal  bank  and  over  the  so-called  16  acre  tract,  and  (2)  to  at- 
tach the  dam  to  the  tov/-path  hank.  The  bank  is  all  there  is 
between  the  river  and  the  canal  there.  It  is  an  artificial  bank 
there.  ^ * There  was  discussion  whether  the  Canal 

Commissioners  had  any  right  in  the  river  to  give  authority  to 
put  in  a dam.  * * * The  Commissioners  expressed  the 

opinion  to  Mr.  Munroe  that  they  did  not  have  any  control  of 
the  Des  Plaines  Kiver  at  that  point  or  any  point,  except 
through  Joliet  where  it  had  been  part  of  the  canal.  It  was 
discussed  with  Mr.  Munroe,  this  doubt  of  our  having  any  right 
to  give  or  having  any  control  over  the  river.  Mr.  Walker’s 
position  to  us  was  that  if  we  didn’t  have  any  we  were  not  doing 
any  one  any  harm  by  relinquishing  anything  that  we  did  not 
have.  Mr.  "Walker’s  contention  was  that  we  had  nothing  to 
give  and  if  Mr.  Munroe  wanted  to  pay  for  something  when  we 
had  nothing  to  give  thei'e  was  no  harm  done.  (Abst.,  pp.  217, 
232-3.) 

“ * * * The  fiowage  contract  had  been  under  discus- 

sion and  practically  agreed  upon  up  to  the  time  of  the  intro- 
duction of  this  lease.  The  lease  was  second  or  practically  at 
the  same  meeting,  but  it  came  in  after  the  fiowage  contract  had 
been  debated,  considered  and  practically  decided  on.  It  came 
as  a result  of  discussion  relative  to  the  rights  recited  in  the 
river — either  the  President  of  the  board  or  attorney  for  the 
board  saying  to  Mr.  Munroe  that  we  did  not  consider  we  had 
any  right  or  jurisdiction  to  give  in  the  river.  Mr.  Munroe ’s 
position  was  that  if  we  were  correct  in  the  assumption  that 
we  had  no  rights  in  the  river,  that  it  would  do  no  hann  for  us 
to  allow  them  to  be  set  forth,  and  perhaps  might  do  them  some 
good.  (Abst.,  p]).  238-9.) 

“The  pole  lease  or  contract  I thiuk  was  executed  at  the 


same  time.  I do  not  think  it  came  up  for  discussion  until  the 
day  of  the  ihial  meeting’  wlien  all  the  instruments  were  exe- 
(mted.  (Ahst.,  p.  240.) 

“ * * * Jt  was  411  the  nature  of  a continuous  transac- 

tion. The  lease  covers  exactl}^  the  permission  covered  in  the 
llowage  contract,  except  it  eliminates  all  reference  to  the  con- 
struction of  the  dam  and  work  in  the  river.  The  pole  line 
lease  did  not'Come  up  for  discussion  prior  to  the  day  when  the 
instrimients  were  all  executed.  (Abst.,  p.  240.) 

“That  clause  in  the  lease  giving*  an  option  of  renewal  to 
Griswold  and  assigns  was  suggested  by  Mr.  Walker.  Most  of 
these  canal  leases  provide  for  a cancellation  upon  notice ; that 
feature  was  discussed,  that  if  in  a work  of  this  sort  if  there 
was  any  cancellation  provided  upon  30  or  60  days’  notice  it 
would  hamper  this  proposition.  (Abst.,  p.  241.) 

“The  negotiations  for  the  flowage  contract  were  begun  be- 
fore June  11,  1904,  the  date  of  the  recommendations  by  the 
Commissioners  to  the  Governor  for  sale.  (Abst.,  p.  242.) 

“ * * * tPg  time  we  recommended  the  sale  to  the  Gov- 

ernor the  question  of  a sale  as  well  as  the  question  of  a flowage 
contract  and  a lease  were  being  talked  over  and  considered. 
Mr.  Munroe  suggested  the  desirability  of  a sale  of  this  tract  in 
preference  to  a lease  if  the  same  could  be  made.”  (Abst.,  p. 
242.) 

Originally,  Munroe  set  out  to  purchase  this  riparian  tract  in  the 
name  of  one  Griswold,  a young  man  about  twenty-five  years  of  age^ 
who  testified  that  he  had  no  interest  in  the  subject;  that  he  never 
saw  the  property,  or  met  any  of  the  Canal  Commissioners,  or  had 
any  intention  of  erecting  any  dam.  (Abst.,  p.  851.) 

The  statute  in  force  then  and  for  many  years  before,  and  after, 
in  respect  to  the  sale  of  canal  lands,  contained  the  following: 

“But  before  making  any  such  sale  they  shall  obtain  the  ap- 
proval of  the  Governor  thereto  and  to  the  time,  place  and 
manner  of  making  the  sale : Provided^  that  before  any  such 
sale  shall  be  made  thirty  days’  previous  notice  thereof  shall  be 
given  in  some  newspaper  published  in  the  county  where  such 
land  is  situated.  And  said  land  shall  be  sold  at  public  auction 
to  the  highest  and  best  bidder.  ’ ’ 

Act  of  April  21, 1899,  Sec.  8,  Clause  Eighth ; Stead’s  Canal 
Laws,  p.  175. 

Mr.  Munroe,  by  depositing  with  them  $350  as  guaranty  hid  in- 
duced the  Canal  Commissioners  to  take  the  necessary  steps  under 


1() 


til  is  statute,  secuire  tlie  Governor’s  approval  and  advertise  this  ri- 
liarian  tract  for  sale. 

Wlien  tlie  time  for  sale  arrived  (Aug.  2,  1904)  none  of  the  Com- 
missioners was  there,  and  it  was  announced  that  the  sale  ivas  post- 
poned. 

On  September  2,  1904,  the  Commissioners  by  resolution  voted 

‘Ghat  the  pro])erty  he  recalled  from  sale  for  the  reason  that  it 
appears  that  the  proxierty  can  be  more  advantageously  leased 
at  a greater  revenue  than  can  at  present  be  realized  from  the 
sale.  It  was  therefore  moved  and  nnanimously  carried  that 
lease  lie  entered  into  with  Harold  F.  Griswold  of  Evanston, 
11!.,  of  the  above  described  projierty  for  a period  of  twenty 
years,  and  for  fioicage  and  pole  rights,  at  a total  rental  for  the 
sum  of  $8,700.00  cash  in  hand,  previous  deposit  or  $350.00  as  a 
guarantee  hid  on  said  property  to  be  returned  to  said  Gris- 
wold.” (Abst.,  pp.  254-5.) 

(In  the  Ivecord  of  Proceedings  of  the  Canal  Commissioners  the 
lease,  the  flowage  contract  and  the  power  pole  line  contract  here 
follow.) 

October  81,  1904,  at  the  next  meeting  of  the  Commissioners, 
occurred  the  following,  according  to  the  minutes : 

‘‘Upon  petition  of  Mr.  Charles  A.  Munroe,  who  guaranteed 
the  expense  of  advertising,  etc.,  the  Commissioners  by  unani- 
mous consent  decided  to  advertise  after  securing  the  con- 
sent and  approval  of  the  Governor,  for  sale,  the  fol- 
lowing described  land”  (the  riparian  tract,  describing  the 
same)  “excepting  and  reserving  the  ninety-foot  strip  of  the 
Illinois  and  Michigan  Canal  subject  to  the  right  of  floivage  and 
lease  of  Harold  F.  Griswold.”  (Abst.,  p.  256.) 

The  next  day,  November  1,  1904,  the  Commissioners  sent  to  the 
Governor  the  written  recommendation  of  sale,  subject  to  the  right 
of,  flowage  and  lease;  that  the  Governor  approved  the  same  in  the 
ordinary  form,  November  2,  1904;  that  the  same  was  advertised 
for  sale  subject  to  the  right  of  floivage  and  lease,  November  3rd  and 
November  17th,  1904;  that  the  supposed  sale  occurred  December  6, 
1904,  by  the  act  of  a clerk  in  the  absence  of  all  the  Commissioners, 
and  that  deed  was  made  January  6,  1905.  (Abst.,  p.  257.) 

Meanwhile,  on  January  5, 1905,  at  the  regular  meeting  for  that 
date,  the  minutes  show  the  following: 

“Resolved,  That  the  proposed  lease  of  that  portion  of  the 
Kankakee  Feeder  in  Section  9 to  Charles  A.  Munroe  for 


17 


iwHMiiy  years  ai  $75  pea-  y(*ar  apj)r()V('(]  und  Uk;  Prc^slchail 
and  S(M‘reiary  insirueted  to  oxeeaiic^  siieli  l(;a.s(‘.” 

(yVIso  resolution  approving-  sale  and  dircH'tin^  (ixeention  of 
deed.)  (Abst.,  ])p.  2()()-7.) 

Deeeniber  CJ,  1904,  10  a.  in.,  none  of  tlie  Commissioners  was  pres- 
ent to  conduct  any  sale.  Tlie  Clerk  of  t'lie  Board  testified  as  fol- 
lows : 

Snyder:  conducted  the  sale  at  the  time  named 

in  the  notice,  December  6,  1904,  10  a.  m.  There  was  also  pres- 
ent Mr.  Munroe,  a gentleman  that  I did  not  recognize,  Mr.  Ke- 
hoe  (a  canal  employe,  who  died  January,  1908),  and  the  em- 
ployes of  the  office;  none  of  the  canal  commissioners  were 
present,  nor  was  Mr.  Walker,  the  attorney  for  the  Board.  I 
offered  the  property  for  sale.  There  was  no  one  bid  except 
Mr.  Munroe.  I struck  it  off  and  declared  it  sold.  I was  in- 
structed, I think,  in  the  absence  of  the  Commissioners  or  the 
attorney,  by  the  superintendent , to  conduct  the  sale,  and  did 
so,  in  pursnance  of  those  instructions. 

‘^My  recollection  is  that  it  was  the  general  understanding 
that  Mr.  Walker  ivoidd  come  down  and  conduct  the  sale,  but  at 
the  last  moment  he  could  not  be  present.  I think  Supt.  Mc- 
Donald was  compelled  to  be  in  Chicago  on  that  day.  My  in- 
structions were  received,  from  Mr.  McDonald.  I was  instructed 
to  conduct  the  sale.”  (Abst.,  p.  256.) 

At  the  Canal  Commissioners’  meetings  of  April  5 and  12  and  Au- 
gust, 8,  1905,  the  minutes  show  that  the  following  occurred : 

^‘Leland  Hotel,  Springfield  111.,  April  5,  1905. 

^‘Mr.  Charles  A.  Munroe  wms  present  and  submitted  propo- 
sition for  additional  lease  of  'water-power  on  the  Des  Plaines 
River.  After  discussion  the  matter  Was  referred  to  Gen.  Supt. 
McDonald  and  Attorney  Walker  for  investigation  and  legal 
opinion.”  (Abst.,  p.  262.) 


Majestic  Hotel,  Chicago,  April  12,  1905. 

^^Mr.  Charles  Munroe  was  present  and  offered  a proposition 
for  Harold  P.  Griswold  for  an  additional  lease  in  connection 
with  the  Kankakee  Feeder.  After  discussion  the  whole  subject 
was  again  referred  to  Supt.  McDonald  and  Atty.  5¥alker 
for  investigation  and  report.”  (Abst.,  p.  263.) 


‘^Lockport,  111.,  August  8,  1905. 
‘‘The  following  resolution  was  offered  by  Comr.  Sackett, 
seconded  by  Comr.  Newton,  and  adopted: 

“Resolved,  That  the  lease  to  Harold  F.  Griswold  of  this 


18 


(late  to  certain  ri^lits  relating  to  the  water  in  the  Kankakee 
Kiver  and  to  tlie  Kankakee  Feeder,  the  reconstruction  of  the 
dam  across  tlie  Kankakee  river  in  Sec.  9,  K.  33,  * * * 

the  repair  of  tlie  hank  of  said  Feeder  and  the  jilacing  of  gates 
thereon  at  a consideration  of  $150  per  annum,  for  the  term 
of  20  years,  be  approved  and  the  President  and  Secretary 
authorizd  to  execute  the  same.”  (Abst.,  p.  203.) 

This  series  of  contracts  was  the  subject  of  substantially  con- 
tinuous negotiations  until  the  wbole  were  acquired,  and  they  em- 
brace grants  of  all  the  rights  and  franchises  heretofore  enumer- 
ated. 

The  State  maintains  that  it  is  the  policy  of  the  State: 

1.  To  maintain  the  Canal  in  its  integrity  and  allow  no  part 
of  it  to  be  alienated; 

2.  To  allow  none  of  the  Canal  Lands,  the  bounty  of  the  Nation, 
to  be  sold,  except  after  published  advertisement,  at  public  auc- 
tion, to  the  highest  bidder; 

3.  To  secure  free,  open  and  equal  bidding  at  such  sale ; 

4.  To  have  that  sale  conducted  by  the  sworn  officer  of  the 
State  appointed  for  the  purpose; 

5.  To  allow  no  water-power,  the  property  of  the  Canal,  to  be 
permanently  alienated ; or  leased  for  more  than  20  years ; 

().  To  allow  no  such  water-power  to  be  leased  even  for  20 
years,  except  after  public  advertisement,  at  public  auction,  to  the 
highest  bidder  ; 

7.  To  secure  free,  open  and  equal  bidding  at  such  letting  of 
water-power; 

8.  To  allow  none  of  the  canal  lands  to  be  leased  for  more  than 
20  years. 

9.  To  allow  no  private  grants  in  perpetuity  of  rights  in  the 
canal  property. 

10.  To  allow  no  private  interests  to  encroach  upon  or  imperil 
the  canal. 


10 


P^liKOHS  T\ElilEI)  On. 

nssii>’ii]iioiii  of  errors,  eondensed,  maintains  iliai  ilio  (V)nrt 

erred : 

1.  In  admitting  improper  evidence  in  belialf  of  defendant 
against  objection  of  complainant. 

2.  In  rejecting  proper  evidence  offered  by  complainant. 

3.  In  dissolving  the  temporary  injunction. 

4.  In  not  making  tlie  temporary  injunction  permanent. 

5.  In  not  bolding  eacli,  every  and  all  of  tlie  contracts  and  leases 
made  between  the  Canal  Commissioners  of  tlie  Illinois  and  Michi- 
gan Canal  and  Harold  T.  Griswold,  and  wliicli  contracts  and 
leases  were  assigned  by  said  Griswold  to  the  defendant,  respect- 
ively, void. 

6.  In  dismissing  the  complainanCs  information  or  bill  of  com- 
plaint. 

7.  In  not  finding  and  decreeing  the  equities  in  said  cause  to  be 
with  the  complainant. 

8.  In  not  finding  and  decreeing  that  by  the  instrument  Exhibit 
A (for  convenience  called  ^Ghe  Perpetual  Flowage  Contract”)  the 
Canal  Commissioners  assumed  to  grant  a perpetual  right  of  flowage 
in  and  over  the  ninety-foot  strip  of  land  adjacent  to  the  Illinois 
and  Michigan  Canal. 

9.  In  not  finding  and  decreeing  that  by  Exhibit  A the  Canal 
Commissioners  assumed  to  grant  a ])erpetual  right  of  flowage  in 
and  over  the  certain  other  real  estate  described  in  said  instrument. 

10.  In  not  finding  and  decreeing  that  the  contract  Exhibit  A 
was  void. 

11.  In  not  finding  and  decreeing  that  by  the  contract  Exhibit 
A,  the  Canal  Commissioners  without  riglit,  without  power,  and 
without  warrant  of  law  assumed  to  authorize  the  party  of  the  sec- 
ond part  thereto  and  his  assigns  to  do  the  following  acts,  among 
others,  and  each  of  them,  respectively,  to  wit: 

11.  (1)  To  build  and  maintain  in  perpetuity  a water- 

])ower  dam  and  other  works  in,  upon  and  across  the  I)es 
Plaines  Elver  at  and  near  its  mouth  and  upon  the  real  estate 
described  in  said  instrument. 


20 


]1.  (2)  To  attach  and  maintain  in  ])erpetuity  tlie  water- 

power dam  to  tlie  tow-patli  and  canal  embankment  of  tlie  Illi- 
nois and  Micliigan  Canal,  the  property  of  tlie  State  of  Illinois, 
at  the  site  of  such  jirojiosed  dam,  and  divert  said  canal  em- 
bankment from  its  necessary  and  lawful  use  in  retaining  the 
canal  waters  in  place. 

11.  (3)  To  flood  in  perpetuity  the  canal  embankment  at 

the  site  of  such  dam  and  above  the  same  and  used  the  canal 
embankment  in  perpetuity  as  a retaining  wall  for  the  water- 
power pool. 

11.  (4)  To  flood  in  perpetuity  the  reserve  ninety-foot 

strip  of  land  bordering  the  Illinois  and  Michigan  Canal  at  the 
site  of  such  proposed  dam  and  for  several  miles  up  stream 
above  said  proposed  dam. 

11.  (5)  To  flood  in  perpetuity  the  canal  riparian  lands 

between  the  Des  Plaines  Kiver  and  the  canal. 

11.  (6)  To  raise  the  tow-path  of  said  canal  and  attach 

and  enclose  a levee  thereto  and  use  the  gravel  and  other  ma- 
terial, building  stone  and  piers  of  the  canal  and  its  aqueduct 
in  constructing  such  works  and  perpetually  maintain  the  same. 

11.  (7)  To  enter  upon  and  fill  in  portions  of  the  Illinois 

and  Michigan  Canal  in  perpetuity. 

11.  (8)  To  divert  and  turn  back  from  the  Des  Plaines 

Elver  the  tributary  stream  known  as  the  ‘^Kankakee  Cut-off ’’ 
and  deplete  the  river  thereby  and  make  the  Kankakee  Cut-off 
run  backward  into  the  Kankakee  Eiver  as  an  outlet  or  spill- 
way for  the  waters  of  the  water-power  pool  to  be  created  by 
said  proposed  dam. 

11.  (9)  To  convert  the  feeder  of  the  Illinois  and  Michi- 

gan Canal,  commonly  called  the  Kankakee  Feeder,  into  a 
feeder  of  the  water-power  pool,  and  in  so  doing  to  excavate 
and  remove  and  destroy  large  portions  of  the  canal  feeder  ac- 
quired and  constructed  by  the  State  as  part  of  the  canal. 

And  the  Court  erred  in  not  finding  and  decreeing  as  to  each 
of  said- proposed  acts  and  works  respectively,  that  the  same 
was  inherently  dangerous  to  the  Illinois  and  Michigan  Canal; 
and  beyond  the  power  of  the  Canal  Commissioners  to  author- 
ize, grant  or  permit;  and  in  not  finding  and  decreeing  that  said 
proposed  acts  and  works  collectively  were  inherently  danger- 
ous to  the  said  canal. 

12.  In  not  finding  and  decreeing  that  said  flowage  contract. 
Exhibit  A,  was  ineffectual  and  without  right  in  so  far  as  it  as- 
sumed to  grant  a right  to  do  the  acts  and  maintain  the  works 
therein  mentioned  in  perpetuity. 

13.  In  not  finding  and  decreeing  that  by  the  contract  Exhibit 
B of  said  Information  (for  convenience  called  ‘‘the  Forty-Year 


21 


lioa'so”)  i'lio  (^aiial  Oominlssioiu^rs  assuiiKMl  io  l(ii  and  Uiascj  ilie 
('anal  projanly  of  llu'  Slal(‘,  Io  wit:  tli(‘  nln(‘l y-l'ooi  siiap  a(lja('(inl 
tlior('to,  (l('S('ril)(Ml  in  said  l^^xliibit  !>,  for  llui  i(n-ni  of  ivvcnily  y(N‘irs, 
with  ilie  tirsl  right  of  ronowal  for  twenty  y(^ai’S  nioj-e. 

14.  In  not  finding  and  decreeing  that  hy  said  instnirnent,  Kx- 
hihit  I),  tlio  C^anal  (V)nnnissioners  assinned  to  let  and  lease  the 
('anal  proi)erty  of  the  State,  to  wit:  That  part  of  th(‘  north  half 
of  Section  o1,  lying  south  of  the  ninety-foot  reserve  strip  along 
the  tow-path  side  of  said  canal,  described  in  said  Exhibit  J>,  for 
the  term  of  twenty  years,  witli  the  first  rigid  of  renoAval  for  twenty 
years  more. 

15.  In  not  finding  and  decreeing  that  said  forty-year  lease,  Ex- 
hibit B,  was  ineffectual  and  void  in  so  farms  it  purported  to  grant, 
let  and  confer  to  and  upon  the  defendant  any  rights  in  excess  of 
the  original  term  of  twenty  years. 

16.  In  not  finding  and  decreeing  that  said  forty-year  lease. 
Exhibit  B,  conferred  no  right  to  overflow  or  flood  or  maintain  a 
standing  pool  of  water  upon  any  of  the  lands  of  the  State  de- 
scribed in  said  instrument. 

17.  In  not  finding  and  decreeing  that  in  and  by  the  instrument 
set  up  as  Exhibit  C to  the  Information  (and  for  convenience 
called  ‘‘the  Kankakee  Feeder  Lease  and  Kiver  Contract”),  the 
Canal  Commissioners  without  right  and  without  warrant  or  au- 
thority of  law  assumed  to  grant  to  the  party  of  the  second  part 
therein  the  right  to  use  said  Kankakee  Feeder  as  a tributary  to 
the  proposed  water-power  plant  for  a term  of  twenty  years,  with 
provision  for  the  first  right  of  renewal  for  twenty  years  more,  and 
to  appropriate  the  waters  of  the  Kankakee  River  and  empty  them 
into  the  defendant’s  water-power  pool  above  its  dam  in  the  Des 
Plaines  River  instead  of  letting  them  flow  naturally  into  the  Illi- 
nois river  below. 

18.  In  not  finding  and  decreeing  that  in  and  by  the  instrument 
set  up  as  Exhibit  K to  said  Information  (for  convenience  called 
“the  Pole  Line  Contract”),  the  Canal  Commissioners  without  war- 
rant of  law  and  without  right  assumed  to  let  and  grant  to  the  party 
of  the  second  part  thereto,  the  right  and  authority  and  estate  of 
maintaining  a line  of  poles  and  wires  for  the  transmission  of 


22 


power  twoiity-fwo  miles  long  ii])oii  the  tow-path  of  tlie  Illinois  and 
Mic'liigan  Canal. 

H).  In  not  finding  and  decreeing  tliat  tlie  Canal  Commissioners 
had  without  warrant  of  law  and  without  right  wrongfully  assumed 
to  sell  by  the  act  of  an  employe,  and  by  the  instrument  set  up  as 
Mxhihit  d to  said  Information  or  bill,  wrongfully  assumed  to  con- 
vey the  real  estate  canal  lands  therein  described. 

20.  In  not  finding  and  decreeing  that  the  title  to  the  bed  of  the 
Des  Plaines  Piver  in  Section  25,  etc.,  where  defendant  proposes 
to  construct  said  water-power  dam,  is  in  the  People  of  the  State  of 
Illinois,  and  in  not  holding  that  the  People  of  the  State  of  Illinois 
owned  the  bed  of  the  river  at  tJiis  place  and  that  the  proposed  dam 
will  be  a trespass  and  a ‘purpresture  upon  its  property  and  sover- 
eign rights. 

21.  In  not  finding  and  decreeing  that  the  Des  Plaines  River  at 
the  said  2:>lace  in  question,  in  Grundy  County,  and  from  its  connec- 
tion with  the  Drainage  Canal  of  the  Sanitary  District  of  Chicago 
to  its  confluence  with  the  Kankakee  River,  is  a navigable  stream, 
and  that  the  erection  of  the  proposed  dam  will  prevent  the  use  of 
the  river  and  constitute  a permanent  nuisance. 

22.  Ill  not  finding  and  decreeing  that  the  Illinois  River,  from 
the  confluence  of  the  Desplaines  and  Kankakee  Rivers  downwards, 
is  a navigable  stream — the  use  of  which  will  be  obstructed  by  the 
dam. 

23.  In  not  decreeing  a perpetual  injunction  against  the  erection 
of  the  proposed  dam. 

21.  In  not  recjuiring  of  the  defendant  the  abatement  of  the  con- 
struction already  placed  in  the  Des  Plaines  River  by  the  defend- 
ant ; and  in  this, 

25.  That  the  decree  and  finding  of  the  Court  are  against  the 
evidence ; and, 

26.  That  the  decree  and  finding  of  the  Court  are  against  the  law. 


IN  THB 


fort  0t  f Uinvk 

ORIGINAL  RECORD  RETURNED  TO 
October  Term,  A.  D.  1908, 

AND  CAUSE  CONTINUED  TO 
February  Term,  A.  D.  1909. 


PEOPLE  OF  THE  STATE  OF  ILLINOIS, 

1 CHANCERY. 

ex  rel.  CHARLES  S.  DENEEN,  Gover-  ^ 

nori  and  WILLIAM  H.  STEAD,  1 

1 Appeal  from 

Circuit  Court, 

C76ii6T&1> 

Appellant  f \ 

Grundy  County. 

vs. 

Honorable  Julian  W.  Mack, 

ECONOMY  LIGHT  & 

POWER  1 

(temporarily  sitting  as  Judge  of 
i said  Court  at  the  request  of 

COMPANY, 

Appellee.  j 

1 Honorable  Samuel  C.  Stouoh, 

1 Judge  of  said  Court),  Judge, 

f Presiding. 

BRIEF  OF  POINTS  AND  AUTHORITIES 


HKMKF  OF  POINTS  AND  A FTI lOH IT! FS. 


Preliminary. 


THE  GOVERNOR  AND  ATTORNEY  GENERAL  HAVE  THE  RIGHT^  POWER  ANI7 
, DUTY  TO  MAINTAIN  THIS  PROCEEDING. 

I.  The  Acts  of  the  Legislature  are  complete  authority  for 

THIS  PROCEEDING,  VIZ  : 

1.  The  joint  resolution  of  the  Legislature,  November  27, 
1907.  (Laws  of  Illinois,  1907-8,  Adjourned  Session,  pp.  101-2.) 

2.  The  Act  of  December  6,  1907,  entitled  ^L\n  Act  recogniz- 
ing the  Des  Plaines  and  Plinois  Elvers  as  navigable  streams, 
and  to  prevent  obstructions  being  placed  therein,  and  remove 
obstructions  therein  now  existing.”  (Laws  of  Illinois,  1907-8, 
Adjourned  session,  pp.  32-3.) 

II.  The  Common  Law  as  to  the  Attorney  General  A office 

AUTHORIZES  THIS  PROCEEDING. 

Canal  Coinrs.  v.  Village  of  E.  Peofia,  179  111.,  214,  affirm- 
ing 75  111.  Ap]).,  450. 

III.  The  Constitutions  and  IjEgislation  of  this  State  pre- 
serve THIS  Common  Ijaw  authority. 


Constitution  of  1818,  Art.  II,  Sec.  25. 

Constitution  of  1870,  Art.  V,  Sec.  1. 

‘L\n  Act  in  regard  to  Attorneys  General  and  State’s  At- 


torneys.” (Act  of  March  20,  1874),  Eev.  St.,  Ch.  14; 


see  especially  Sec.  4. 

Hunt,  Attorneg  General,  v.  Horse  and  Dummy  Railroad, 
20  111.  App.,  282. 

Affirmed  on  this  point,  121  111.,  038-042. 

Attorney  General  v.  Woods,  108  Mass.,  430. 

Attorney  General  v.  Jamaica  Pond  Aqueduct  Corporatvon, 
133  Mass.,  301. 

People  V.  Tibbetts,  19  N.  23. 


People  V.  Vanderbilt,  2()  N.  Y.,  287. 

People  V.  Canal  Appraisers,  33  N.  Y.,  461-467. 

People  V.  Gutcliess,  48  Barb.,  656. 

The  original  prerogative  powers  of  the  Attorney  General  include 
the  power  to  invoke  the  protection  of  tlie  Court  against  tdtra  vires 
contracts  by  commissioners. 

Attorney  General  v.  Forbes  {Cottenham,  Lord  Chancel- 
lor), 2 Mylne  & Craig,  123,  and  Notes  to  American  edi- 
tion. 

Freivein  v.  Leivis,  4 Mylne  & Craig,  249. 

IV.  The  Canal  Act  provides  that  the  Canal  Commissioners 

SHALL  NOT  BE  SUED. 

Therefore  it  was  not  necessary  or  practicable  to  make  the 
Canal  Commissioners  parties.  The  Court  erred  on  this.  (Abst., 
p.  788.) 

Canal  Act,  Sec.  3:  ^^An  Act  to  revise  the  law  in  relation 
to  the  Illinois  and  Michigan  Canal  and  for  the  improve- 
ment of  the  Illinois  and  Little  Wabash  Eivers.’’  (Eev. 
St.,  Ch.  19,  Sec.  3.) 


DIVISION  ONO. 


The  Canae  Commissioners^  Contracts  Are  Void. 

I. 

THE  FLOWAGE  CONTRACT  GRANTING  THE  RIGHT  TO  FLOOD  THE  NINETY- 
FOOT  STRIP^  TFIE  TOW-PATH  BANK  AND  THE  RIPARIAN  TRACT  IN  PER- 
PETUITY is  a sale  of  real  estate. 

1.  As  such  sale  it  violates  the  statute  forbidding  a sale  of  Canal 
real  estate,  except  upon  advertisement  and  to  the  highest  bidder, 
and  is  void. 

Canal  Act,  Eev.  St.,  Ch.  19,  Sec.  8,  Cl.  8,  as  amended  by 
Act  of  April  21,  1899,  Laws  of  1899,  p.  82,  4 Starr  & 
Curtis,  90-1. 

2.  As  such  sale  of  real  estate  it  is  an  attempted  sale  of  the  nine- 
ty-foot strip,  and  violates  the  istatiite  reserving  the  ninety-foot  strip 
from  sale.  See  statute  last  cited. 

That  such  contract  conferring  the  right  of  permanent  flowage  of 
land  is  a Sale  and  Grant  of  an  Estate  in  Land,  see  the  following 
authorities : 

Woodivard  v.  Seeley,  11  111.,  157. 

Wilmington  Water  Poiver  Company  v.  Evans,  166  111.,  548. 

Beyo  V.  Ferris,  22  111.  App.,  154. 

Mnmford  v.  Whitney,  15  Wend.,  381-393. 

Cook  V.  Stearns,  11  Mass.,  533,  536-8. 

Nellis  V.  Munson,  108  N.  Y.,  453. 

Fitch  V.  Constantine  Hydraidic  Company,  44  Mich.,  76; 
S.  C.  and  6 N.  W.  Kep.,  91. 

Even  a license  to  erect  a permanent  dam  on  another’s  land,  or  to 
overflow  another’s  land,  must  be  by  deed,  for  it  is  the  Sale  of  an 
Estate  in  Land. 

Broivn  v.  Woodivorth,  5 Barb.,  550. 

H oughtaling  v.  Houghtaling,  5 Barb.,  379. 

Davis  V.  Toivnsend,  10  Barb.,  338;  id.,  496. 


It,  it*  valid,  ('oiivoys  an  estate,  wliieli  precludes  tlie  grantor 
from  any  use  inconsistent  with  tlie  beneficial  exercise  of  the  flow- 
age  right. 

Woodtvard  v.  Seeley^  11  111.,  164. 

Pliillips  V.  Watnppa  lieservoiy  Company,  108  Mass.,  404; 
68  Northwestern,  848. 

Tlie  interest  purported  to  be  conveyed  by  the  fiowage  contract 
is  perpetual. 

No  words  of  inheritance  are  necessary  to  the  creation  of  a per- 
petual right  of  fiowage. 

Cole  V.  Lake  Co.,  54  N.  H.,  242. 

Clark  V.  Strong,  105  N.  Y.  App.  Div.,  179. 

Su'cetland  v.  Grant’s  Press  Power  Company,  46  Ore.,  85. 

Phillips  V.  Watuppa  Reservoir  Co.,  184  Mass.,  404;  68 
N.  E.  Eep.,  848. 

Tuttle  V.  Harry,  56  Conn.,  194;  14  Atl.,  209. 

Chappell  V.  Hew  York,  etc.,  R.  Co.,  62  Conn.,  195;  24  Atl., 
997. 

Hall  V.  Turner,  110  N.  Car.,  292;  14  S.  E.,  791. 

The  Elooded  Aeea. 

The  area  to  be  flooded  in  perpetuity  thereunder  is: 

(a)  The  ninety-foot  strip  through  three  canal  sections  (25,  31 
and  29)  expressly  named; 

(b)  The  ninety-foot  strip  up-stream  from  these  (so  far  as  it 
bordered  the  river),  by  back  water  caused  by  the  darn  ^‘with  crest 
at  XX — 73.2,  Chicago  datum,  but  in  no  event  shall  back  water 
caused  thereby  extend  beyond  the  northerly  limits  of  Lake  Joliet,” 
fifteen  miles  up  stream ; 

(c)  The  Eiparian  Tract  in  Section  31  between  the  canal  and 
the  river. 

(d)  The  Tow-])ath  bank. 

The  area  of  the  Eiparian  Tract  (which  is  nowhere  specifically 
testified  to,  but  is  vaguely  referred  to  as  the  ^A6  2-3  Acre  Tract”) 
is  proven  by  *‘Hillebrand  Exhibit  3.”  The  tract  is  correctly  de- 


lineatod  tliercou  and  as  delineated  occupies  tlie  irr’egular  curved 
triangular  space  about  a mile  long  and  one-eightli  of  a mile  wide. 

Triangulation  of  tlie  delineated  territory  gives  the  following 
areas : 

Riparian  Tract  to  Meander  line 3:2.59  acres 

North  half  of  river-hed 2().33  acres 

Feeder  right-of-way  3.51  acres 

Feeder  ninety-foot  strip 17.71  acres 

80.14  acres 

The  Flooded  Area  of  the  Ninety-Foot  Strip. 

Length — Of  the  ninety-foot  strip,  the  whole  was  to  he  flooded 
throughout  (a)  the  three  sections  expressly  named,  and  (h)  the 
up-stream  portion  therefrom  (so  far  as  it  bordered  the  river)  to 
the  north  end  of  Lake  Joliet. 

Width. — The  flooding  was  to  occupy  the  total  width  of  the 
ninety-foot  istrip,  less  ‘Mhe  present  width”  of  the  tow-path  (proven 
to  be  12  feet.)  The  flooded  area  was  fo  he  78  feet  wide. 

In  Section  31,  ‘Mlillebrand  Exhibit  3”  shows  the  flooded  length 
of  the  ninety-foot  strip  to  be  6,670  feet,  which  multiplied  by  78 
feet  gives  11.94  acres.  The  flooded  area  in  the  other  two  sections, 
expressly  named,  and  in  (h)  the  up-stream  portions  of  the  ninety- 
foot  strip,  where  it  borders  the  river  elsewhere  to  Lake  Joliet, 
will  considerably  increase  this  amount. 

The  easement  of  perpetual  flowage  of  over  100  acres  of  land 
was  granted. 

Courts  take  judicial  notice  of  the  principles  of  mathematics  and 
the  science  of  mensuration  and  will  measure  for  themselves  by 
judicial  notice  the  areas  of  which  the  dimensions  are  proved. 

Scanlan  v.  San  Francisco,  etc.,  By.  Co.,  (Cal.),  55  Pac. 
Rep.,  694.  (And  see  cases  cited  on  ‘Mudidnl  No* ice,” 
herein.) 


THE  FLOWAGE  CONTRACT  IS  BEYOND  THE  POWERS  OF  THE  CANAL  COM- 
MISSIONERS^ AND  IS  VOID. 

The  Canal  Commissioners  are  statutory  officers.  They  derive 
their  powers  from  the  statute.  They  have  only  enumerated  spe- 
cial powers.  These  are  set  forth  in  ^^An  Act  to  revise  the  law  in 
relation  to  the  Illinois  and  Michigan  Canal  and  for  the  improve-' 
ment  of  the  Illinois  and  Little  Wabash  Eivers/’  as  amended  hy 
Act  of  April  21,  1899,  Laws  of  1899,  p.  82;  4 Starr  & Curtis,  Ch. 
19,  pp.  89-91. 

Powers  to  make  this  contract  will  not  be  found  there.  The 
Commissioners  have  no  powers  by  implication. 

Statutes  delegating  powers  to  public  officers  are  strictly  con- 
strued and  all  parties  interested  must  look  to  the  statute  for  the 
grant  of  power. 

Acts  of  the  Commissioners  not  Avithin  the  terms  of  the  statutes 
are  void. 

(1837)  111.  S Mich.  Canal  v.  Calhoun,  1 Scam.,  521. 

(1907)  Dieclrich  v.  Rose,  228  111.,  610,  affirming  S.  C.,  133 
111.  App.,  384. 

State  of  Illinois  v.  Delafield,  8 Paige’S'  Chy.,  528. 

And  their  grants,  in  derogation  of  public  rights,  are , strictly 
construed,  and  not  extended  by  implication.  (See  authorities 
cited  for  this  under  Division  Two,  Point  VI.) 

The  flowage  contract  (clause  9)  in  express  terms  authorizes 
the  invasion  of  the  canal.  This  is  illegal  and  void. 

It  reads : 

(9)  Said  party  of  the  second  part  is  hereby  authorized  Jo 
enter  upon  the  lands  and  premises  of  the  State  of  Illinois,  part 
and  parcel  of  the  Illinois  and  Michigan  Canal,  and  to  enter 
upon  the  canal  itself  in  the  manner  and  to  the  extent  it  shall 
be  necessar^^ — 

(1)  To  raise  and  maintain  the  tow  path  as  above  provided ; 

(2)  To  attach  and  build  said  dam  or  other  works  on  the 
said  tow-path  bank,  as  herein  provided ; 

(3)  To  repair,  maintain  or  renew  the  same,  as  shall  become 
necessary  to  the  preseiwation  thereof. 


7 


Tills  subordinates  the  ])iibli(^  property  to  tlie  jirivate  purposes 
and  is  illegal  and  beyond  the  power  of  the  (/anal  Oornniissioners. 
Snyder  v.  Ciiy  of  Mt.  Pidashi,  176  111.,  897. 

City  of  Morrison  v.  Tlinkson,  87  TIL,  587. 

Attorney  General  v.  Forbes^  2 Mylne  & Craig,  128. 

Fretven  v.  Lewis,  4 Mylne  & Craig,  249. 


III. 

THE  CANAL  LEASES  AKE  ILLEGAL  AND  VOID. 

These  leases  are : 

Exhibit  B”  (The  lease  of  Eiparian  Tract,  Tow-path  Bank 
and  Ninety-foot  Strip), 

Exhibit  C”  (ICankakee  Feeder  Lease,  the  River  Con- 
tract), 

^‘Exhibit  IC”  (25-inile  Pole  Line,  Lease  of  Tow-path  and 
Canal  Bank) — • 

1.  They  contain  kenewal  clauses  for  a second  teem  of  twenty^ 

YEARS. 

Canal  leases  are  by  statute  limited  to  twenty  years. 

Canal  Act,  4 Starr  S:  Curtis,  Ch.  19,  Sec.  8,  cl.  5. 

The  attempted  grant  of  the  lease  for  a longer  time  renders  them 
void. 

7.  (&  M.  Canal  v.  Calhoun,  1 Scam.,  521. 

Diederich  v.  Bose,  228  111.,  610. 

Affirmed,  id.  188,  111.  App.,  891. 

State  of  Illinois  v.  Dela field,  8 Paige’s  Chy.,  528. 

This  renewal  clause  amounts  in  itself  to  making  the  lease  for 
the  extended  term.  (So  held  in  the  case  of  the  Mhiter  Power 
Lease.)  (Per  Dixon,  C.  J.,  Noonan  v.  Orton,  27  AVest.,  800;  S.  C., 
21  AVest.,  265. 

2.  The  lease  for  purposes  of  flooding  the  ninety-foot  strip 

•AND  TOW-PATH  BANK  FOR  SEVERAL  MILES  ENDANGERS  THE  CANAL,  AND 
IS  AN  INVASION  OF  PART  OF  THE  CANAL. 

The  ninety-foot  strip,  the  tow-])nth  and  the  berm  bank  are  inte'- 
gral  parts  of  the  canal,  and  cannot  be  leased  or  put  to  any  use  or 


subjected  to  any  burden  other  than  for  canal  purposes.  (See 
authorities  next  cited). 

Snell  leasing  of  several  miles  of  the  ninety-foot  strip  and  tow- 
path  hank  for  jirivate  ]uu-})oses— which  is  inherently  dangerous 
to  the  canal — is  beyond  the  power  of  the  Canal  Commissioners. 

^^The  Board  of  Public  Works  possess  no  power  to  grant  rights, 
easements  or  privileges  for  private  advantage  unless  expressly 
authorized  by  law.” 

Ohio  ex  rel.  Attorney  General  v.  Cin.  Central  R.  Co.,  37 
Ohio  St.,  157. 

^‘The  berm  bank  of  the  canal  is  part  thereof,  and  equally  pro- 
tected by  law  from  all  occupancy  or  intrusion  as  any  other  part.” 

Ibid. 

The  foot-path  or  tow-path  and  strip  of  land  occupied  by  it  along 
a canal  is  part  of  the  canal. 

Alexander  v.  Tolleston  Club,  110  111.,  65. 

Morgan  v.  Bass,  14  Fed.,  454. 

Hatch  V.  C.  S I.  R.  Co.,  18  Ohio  St.,  92. 

Edwards  v.  Schlund,  21  Ohio  St.,  193. 

Penn.  Canal  Co.  v.  Harris,  101  Pa.,  80. 

Schuylkill  Navigation  Co.  v.  Berks  Co.,  Comrs.,  11  Pa.  (1 
Jones),  202. 

Western  Pa.  R.  Co.  v.  Childs,  3 Pittsburg  E.,  168. 

Midlen  v.  Lake  Drummond  Canal  & W ater  Co.,  63  L.  E.  A., 
883. 

The  location  and  topography  of  the  canal,  with  bluffs  on  one  side 
and  swamp  on  the  other  at  this  point,  make  these  constructions 
inherently  dangerous,  and  the  work  as  planned  increases  that  dan- 
ger. 

See  ^‘History  of  Canal”  in  Canal  Commissioners’  Ee- 
port  of  1900,”  pp.  124,  148,  156,  169,  170.  (Abst.,  pp. 
1876,  1888,  1891-2,  1895.) 

And  see  testimony  of  Lyman  E.  Cooley  on  this  subject, 
Al)st.,  pp.  848-9. 

Testimony  of  Cramer,  Abst.,  pp.  354-371. 

Testimony  of  Benezette  Williams,  Abst.,  pp.  336-354. 


Tesliinoiiy  of  Uiidolpli,  i\l)sl.,  \)\). 

Testimony  of  J>remer,  i\l)st.,  pp.  779-794. 

9.  Tlie  Canal  Commissioners  liold  the  (-anal  with  all  its  in- 
cidents in  trust  for  public  uses  and  can  grant  no  easement  therein 
for  the  benefit  of  private  parties  and  to  the  exclusion  of  the 
public. 

Snyder  v.  The  City  of  Mt.  Pnlashi,  176  111.,  397. 

Field  V.  Barling,  149  111.,  556 

Hihhard  v.  City  of  Chicago,  173  111.,  91. 

Briggs  v.  Phillips,  103  N.  Y.,  77. 

Smith  V.  The  State,  23  N.  J.  L.,  712. 

Attorney  General  v.  Heishon,  18  Y.  J.  Eq.,  410. 

State  V.  Woodivard,  24  Vt.,  92. 

The  power  conferred  on  these  officers  is  limited  to  public  pur- 
poses, and  must  be  expressed,  and  cannot  be  exceeded. 

Any  fair,  reasonable  doubt  concerning  the  existence  of  the  power 
of  public  officers  to  devote  public  property  to  questionable  uses  is 
resolved  by  the  Courts  against  the  corporation,  and  the  power  is 
denied. 

1 Dillon  on  Mimic.  Chirp.,  Secs.  55,  251. 

Raivlms  v.  Cerro  Gordo,  32  111.  App.,  215. 

Trustees  v.  Jacksonville,  61  111.,  199. 

Emmons  v.  Leivistoivn,  132  III,  380. 

Chicago  v.  McCoy,  136  111.,  344. 

Cairo  v.  Bross.,  101  111.,  475. 

Huesing  v.  Bock  Island,  128  111.,  465,  and  cases  in  these 
authorities  cited. 

(These  are  to  a considerable  extent  highway  cases,  but  the  rule 
is  plainly  the  same  for  canal  commissioners  as  for  other  highivay 
commissioners.) 

Licenses  to  erect  structures  in  or  upon  highways  are  authorized 
only  for  the  promotion  of  the  public  uses  for  which  the  highways 
were  established,  and  the  accomplishment  of  public  utilities.  Street 
railways,  gas  pipes  and  electric  light  wires  are  permitted  in  the 
streets  upon  this  ground.  They  serve  municipal  purposes  and  pub- 
lic uses. 


K) 


Tlie  private  wires  and  pole  lines  and  dams  of  the  private  power 
company  promote  no  such  purpose.  They  are  devoted  to  private 
purposes,  which  are  foreign  to  and  adverse  to  the  public  uses  for 
whicli  the  canal  was  built. 

The  degree  of  such  encroachment  is  immaterial. 

See  cases  last  cited. 

4.  The  flowage  contract  and  leases  are  in  terms  assignable  to 
irresponsible  parties  without  the  Canal  Commissioners’  consent, 
and  this  will  release  the  defendant  and  leave  the  State  no  remedy 
for  the  protection  of  the  Canal. 

This  was  inexcusable  negligence  by  the  Commissioners. 

Consolidated  Coal  Co.  v.  Peers,  166  111.,  361-3-6-7-8. 

Taylor  on  ‘‘Landlord  and  Tenant,”  Sec.  452. 

Wood  on  “Landlord  and  Tenant,”  Secs.  307,  339-340,  349. 

5.  The  Kankakee  Feeder  Lease,  “Exhibit  C,”  is  void. 

The  other  lease,  “Exhibit  B,”  and  the  flowage  contract  also  pur- 
port to  dispose  of  the  Feeder  in  part,  and  are  consequently  void. 

a.  By  the  Kankakee  Feeder  Lease,  “Exhibit  C,”  the  Canal 
Commissioners — 

“reserve  the  right  to  cancel  this  lease  and  recover  possession 
of  the  land,  property  and  rights  above  demised  and  referred  to, 
whenever  in  the  judgment  of  the  Canal  Commissioners,  or  other 
proper  officers  of  the  State  at  such  time  having  charge  of  canal 
property,  they  shall  deem  the  interests  of  the  State  require  it 
to  repossess  and  use  said  propertv  for  State  purposes.”  (Abst. 
'p.  39.) 

This  power  to  cancel  was  exercised  by  the  Legislature  itself  by 
the  Act  of  December  6,  1907  (L.  1907-8,  pp.  32-33). 

The  Legislature  can  exercise  this  power. 

Laramie  County  v.  Albany  Co.,  92  IT.  S.,  307-312,  and  other 

cases  there  cited.  - 

Bussell  V.  Beed,  27  Pa.  St.,  170. 

h.  This  Feeder  Lease,  “Exhibit  C,”  contains  the  twenty-year 
renewal  clause,  and  is  therefore  void. 

See  clauses  from  the  statute  heretofore  cited  under  Part 
III,  Sec.  1. 


11 


The  Kiuikakoo  Foedei-  Loas(‘,  ‘‘Fxliibit  (V’  wat(a*-})()\v(*r 

lease  and  violates  the  statute  thereon,  requiring  public  letting  to 
the  highest  bidder. 

4 Starr  & Curtis,  Annotated  Statutes,  Ch.  19,  Sec.  8,  Cls. 
6 and  7,  pp.  90-91. 


<7.  No  })ower  is  conferred  on  the  Commissioners  to  let  out  the 
canal  feeders  in  the  absence  of  express  authority.  In  such  officers 
no  implied  authority  exists. 

See  authorities  cited  under  Part  II  above. 

1 Scam.,  521;  228  Ilk,  fild;  8 Paige’s  Chy.,  528. 


e.  The  title  to  the  Feeder  lands  does  not  revert  or  leave  the 

State  by  non-user.  The  fact  that  the  feeder  was  out  of  use  and 
out  of  repair  does  not  confer  authority  to  sell  it,  lease  it  or  give 
it  away.  v 

Rexford  v.  Knight,  11  N.  Y.,  308. 

Frank  v.  Evansville  Co.,  Ill  Ind.,  132. 

Mason  v.  Lake  Erie  & S.  IF.  Ry.  Co.,  1 Fed.  Pep.,  712. 

Craig  v.  Allegheny,  53  Pa.  St.,  477. 

White  V.  State,  14  Ohio,  408. 

f.  No  length  of  non-user  will  extinguish  the  rights  of  the  State 
in  the  Canal  property. 

Curran  v.  Louisville,  83  Ky.,  G28. 

Donahue  v.  State  of  N.  Y.,  112  N.  Y.,  142.  S.  c.  2 L.  R.  A., 
576. 

State  V.  Doig,  2 Rich.  (S.  Car.),  179. 

Canal  Commissioners’  Report,  1900,  ]).  220,  reciting — 

“There  are,  however,  over  125  acres  of  good  land  used  for 

this  feeder  that  now  belong  to  the  State  of  Illinois.” 


THE  FLOWAGE  CONTRACT  (EXHIBIT  a)  AND  THE  LEASE  OF  THE  RIPARIAN 
TRACT^  TOW-PATH  BANK  AND  NINETY-FOOT  STRIP  (EXHIBIT  b)  ARE 
SEPARATE  CONTRACTS. 

GRISWOLD  AND  ASSIGNS”  IN  THE  ONE  IS  NOT  THE  SAME  PARTY”  AS 
GRISWOLD  AND  ASSIGNS”  IN  THE  OTHER. 

THEY  MAY  PASS  TO  SEPARATE  ASSIGNEES,  AND  SHOULD  BE  CONSTRUED  AS 
DISTINCT  AND  SEPARATE  CONTRACTS. 

BUT  IF  CONSTRUED  TOGETHER  AS  ONE  CONTRACT,  THE  RESULTING  CON- 
TRACT IS  A WATER-POWER  LEASE  MADE  IN  VIOLATION  OF  THE  STAT- 
UTE THEREON,  AND  THEREFORE  VOID. 

1.  Exhibits  A,  B and  K (Pole  Line  Lease)  were  all  made  Sep- 
tember 2,  1904. 

It  has  been  contended  that  they  should  be  construed  as  one  con- 
tract. 

We  deny  this  contention. 

The  lease  (Exhibit  B)  to  Griswold  and  assigns  is  expressly 
made — • 

‘‘subject  to  the  contract  dated  the  2nd  day  of  September, 
A.  D.  1904,  to  said  Harold  F.  Griswold,  affecting  said  prem- 
ises.” 

Further,  the  lease  (Exhibit  B)  provides-^ 

“It  is  further  covenanted  and  agreed  between  the  parties 
aforesaid  that  said  party  of  the  second  part  is  hereby  charged 
ivith  knoivledge  of  all  of  the  provisions  contained  in  said  con- 
tract with  Harold  F.  Griswold,  in  so  far  as  they  affect  the 
premises  hereby  leased.” 

Each  contract  is  made  with  Grisv/old  and  assigns. 

Each  contract  may  be  separately  assigned — one  to  A B and  the 
other  to  X Y,  without  any  consent  or  permission.  Griswold  and 
his  assigns,  A B,  are  not  the  same  party  as  Griswold  and  his  as- 
signs X Y. 

2.  If  construed  together  they  constitute  a water-power  lease. 

They  purport  to  lease  property  for  the  purpose  of  maintaining 


•> 
• > 


a ^\^ater-po'wer  dam  and  ovxvrflowitig  tho  canal  property,  and  trans- 
mitting elc(di'i(‘al  energy  by  a p()l(‘  line  on  lli(‘  tow-patli,  for  tw(nity- 
bve  miles.  These  are  all  the  distinct  features  of  a water-power- 
lease. 

The  canal  records  of  April  5,  1905,  refer  to  another  proposition  : 
^‘h\)r  additional  lease  of  water-])ower  on  the  l)es  Plaines  liiver.” 
(Abst.,  p.  2()2.) 

The  (Anal  Act  re(]iiires  leases  of  water-power  to  l)e  let  to  the 
highest  bidder  after  thirty  days’  public  notice.  This  transaction 
violates  this  statute. 

E.  S.  Ch.  19,  Sec.  8,  Cl.  6,  as  amended  by  Act  of  April  21, 
1899. 


V. 

THE  SALE  OF  THE  CANAL  LANDS  WAS  AIADE  BY  AN  EMPLOYE  OF  THE  CANAL 
COMMISSIONERS,  IN  THE  ABSENCE  OF  ALL  THE  COMMISSIONERS  AND 
WITHOUT  ANY  AUTHORITY  CONFERRED  UPON  HIM,  AND  WAS  VOID. 

The  property  had  been  advertised  for  sale.  It  had  been  arranged 
that  their  attorney  should  be  present  and  conduct  the  sale,  and  no 
commissioner  was  present.  Their  attorney  telephoned  the  super- 
intendent to  conduct  the  sale,  and  he  in  turn  instructed  an  employe, 
John  M.  Snyder,  tb  conduct  the  sale.  At  that  time  the  Canal 
(Ammissioners  had  a living  secretary.  Later  the  secretary  died 
and  Mr.  Snyder  was  then  appointed  acting  secretary.  But  at  the 
time  of  this  sale  he  held  no  position  exce])t  that  of  employe. 

The  sale  of  public  property  by  public  officers  is  a special  trust, 
requiring  the  official  discretion  and  judgment  of  the  public  trustees. 

They  cannot  delegate  this  judgment  and  discretion  to  an  attor- 
ney. 

A fortiori  the  attorney  can  not  delegate  it  to  the  sujieriiitendent. 

With  yet  stronger  reason  the  superintendent  cannot  delegate  it 
to  an  employe. 

(1842)  Mason  v.  Wait,  4 Scam.,  127  (Guardian’s  sale  un- 
der special  legislative  authority,  made  by  Guardian’s  at- 
torney in  fact,  invalid.) 

(1874)  Sehastian  v.  Johnson,  72  III.,  282  (Administratrix’ 


14 


sale,  made  by  an  agent  or  auctioneer  whom  she  engaged, 
for  tlie  purpose,  but  in  her  absence — sale  held  void  and 
relief  denied  to  purchaser.) 

(181b)  lleyer  v.  Deaves,  2 Johnson’s  Ch.,  154  (Master’s 
sale  by  deputy  master,  invalid.) 

(1850)  Foivell  v.  Tuttle^  3 N.  Y.,  396  (Two  Loan  Com- 
missioners authorized  to  sell;  sale  by  one  invalid.) 

(1857)  Moss  V.  Peary,  2 Pat.  & Heath  (Va.),  483  (Sale 
by  one  of  two,  the  other  being  absent,  invalid.) 

(1876)  Noland  v.  Noland’s  Admr.,  75  Ky.,  426  (Court 
Commissioner;  sale  by  auctioneer  in  absence  of,  in- 
valid.) 

(1861)  Cheatham  v.  Phillips,  23  Ark.,  80  (Swamp  land 
commissioners;  sale  by  sub-commis'sioner  invalid.) 

(1894)  Bickerton  v.  Grimes,  8 Wash.,  451  (County  Com- 
missioners; sale  auctioneer’s  services  unauthorized.) 

(1864)  White  v.  Lester,  40  N.  Y.  (1  Keyes),  316  (Loan 

. commissioners;  sale  both  being  present;  book  entries 
by  one,  valid.) 

(1875)  Jackson  Co.  v.  Brush,  77  111.,  59,  65  (County 
Commissioners  intrusted  with  bonds  in  escrow  for  de- 
livery on  fulfilment  of  conditions.  Power  to  decide  on 
conditions  and  deliver  bonds  cannot  be  delegated  by 
them.) 


VI. 

THE  DEED  OF  THE  RIPAEIAl^  TRACT  IS  VOID. 

1.  The  Deed  professedly  simply  'carries  into  effect  the  void 
sale,  and  is  therefore  also  void. 

2.  The  Deed  expressly  renews  the  void  covenants  of  the  Canal 
Commissioners  in  the  void  flowage  contract,  and  is  therefore 
void. 

The  language  of  the  Deed  thereon  is  this : 

^‘Subject,  however,  to  the  terms,  conditions  and  provisions 
of  the  flowage  contract  and  lease  made  to  said  Harold  F. 
Griswold,  and  bearing  date  of  September  2,  1904,  which 
terms,  conditions  and  provisions  still  remain  in  full  force,  and 
shall  be  fidly  kept  and  performed.” 

This  provision  in  the  Deed,  signed  by  the  Commissioners,  is  a 
new  covenant  by  them,  renewing  the  void  undertaking  of  the  flow- 
age  contract.  A,  and  the  void  lease,  B. 

3.  It  is  subject  to  the  reserve  of  the  flowage  right,  which  (be- 


15 


cause  the  flowage  coiilract  is  void)  never  left  tlie  (janal  (jornrnis- 
sioners. 

Tlie  Deed  bein^  subject  to  the  reserved  right  which  never  left 
the  Canal  Commissioners,  therefore  fails  to  take  effect. 

VIT. 

THE  ENTIRE  SERIES  OF  CONTRACTS  IS  AGAINST  PUBLIC  POLICY  AND  VOID. 

PUBLIC  POLICY  OF  THE  STATE  AS  TO  THE  CANAL  AND  CANAL  LANDS. 

It  is  the  policy  of  the  State^ — 

(1)  To  maintain  the  canal  in  its  integrity  and  allow  no  part 
of  it  to  be  alienated; 

(2)  To  allow  none  of  the  canal  lands,  the  bounty  of  the  nation, 
to  be  sold  except  after  public  advertisement,  at  public  auction,  to 
the  highest  bidder; 

(3)  To  secure  free,  open  and  equal  bidding  at  such  sale ; 

(4)  To  have  that  sale  conducted  by  the  sworn  officer  of  the 
State  appointed  for  the  purpose; 

(5)  To  allow  no  water-power,  the  ])ro})erty  of  the  canal,  to  be 
permanently  alienated  or  leased  for  more  than  20  years ; 

(6.)  To  allow  no  such  water-power  to  be  leased  even  for  20 
years  except  after  public  advertisement  at  public  auction  to  the 
highest  bidder; 

(7)  To  secure  free,  open  and  equal  bidding  at  such  letting  of 
water-power. 

(8)  To  allow  none  of  the  canal  lands  to  be  leased  for  more  than 
20  years ; 

(9)  To  allow  no  private  grants  in  perpetuity  of  rights  in  the 
canal  property. 

(10)  To  allow  no  private  interests  to  encroach  upon  and  im- 
peril the  canal. 

Each  of  these  principles  of  public  policy  was  violated  by  the 
contracts  held  by  appellee. 

1.  Contracts  violating  the  ])olicy  of  the  State  are  void. 

Greenhood  on  Public  Policy,  Pule  2,  pp.  1,  2,  5,  8,  113. 


k; 


In  construing  contracts,  tlie  first  purpose  of  tlie  courts  is  to  look 
to  the  welfare  of  the  public. — Ibid. 

When  the  tendency  of  a contract  is  to  injure  the  public  no  right 
can  be  founded  thereon.^ — Ibid. 

Craivford  v.  Wick,  18  Ohio  St.,  190,  204., 

llolloday  v.  Patterson^  5 Ore.,  177,  180. 

Picliardson  v.  Crandall,  48  N.  Y.,  343. 

' Any  contract  made  for  the  purpose  of  giving  effect  to  an  agree- 
ment which  is  hostile  to  the  welfare  of  the  public,  or  having  its 
origin  therein,  or  growing  immediately  therefrom,  is  void. 

(Jreenhood  on  Ihiblic  Policy,  p.  8. 

A contract,  which  in  its  execution  will  contravene  the  policy  and 
spirit  of  a statute  is  equally  void  as  if  made  against  its  positive 
provisions. 

(Uinfher  v.  Deirine,  11  Ta.,  133. 

Statutes  delegating  iiowers  to  jmblic  officers  must  be  strictly 
construed,  and  all  parties  interested  must  look  to  the  statute  for 
the  grant  of  power. 

Diederlch  v.  Rose,  228  Til.,  610. 

If  authority  for  the  contract  of  a public  office  cannot  be  found 
delegated  by  the  statute,  then  the  contract  must  fall. 

Dement  v.  Rokker,  126  111.,  174. 

This  applies  with  peculiar  force  to  grants  of  corporate  priv- 
ileges or  franchises  in  public  property, 

Jones  V.  Kline,  41  N.  H.,  238. 

State  V.  Garland,  7 Ired.,  49. 

Ohio  ex  rel.  v.  Board  of  Public  Works,  36  Ohio  St.,  409. 

Ohio  ex  rel.  v.  Cincinnati  Central  R.  Co.,  37  Ohio  St.,  157. 

2.  The  Courts-  will  restrain  the  performance  of  contracts  hos- 
tile to  the  policy  of  the  State. 

State  of  Illinois  v.  Delafield,  8 Paige’s  Chy.,  N.  Y.,  527. 

(A  contract  by  State  agents  for  the  canal  bonds  of  this 
very  canal.) 

k - 


17 


Inter  Ocean  Fnhlisliing  Co.  v.  Associated  Press,  184  III., 
438. 

Cooh  County  Briclc  Co.  v.  Labahn  Erich  Co.,  92  111.  App., 
7)26. 

Cone  V.  Russell,  48  N.  J.  Eq.,  208;  21  At].,  847. 

McGuire  v.  Ashby,  1 Eand.  (Va.)  76. 

Bashett  v.  Moss,  115  N.  Car.,  448. 

Greenwood  on  Public  Policy,  p.  131. 

3.  Where  the  leading  part  of  a contract  or  a series  of  contracts 
for  a common  purpose  is  contrary  to  public  policy,  no  part  of  such 
contracts  will  be  upheld. 

Penn  v.  Bornman,  102  PL,  523,  9. 

Broom’s  Legal  Maxims,  723. 

Norton  v.  Simmes,  Hobart,  12  c. 

So  of  a lease  for  the  purpose  of  maintaining  an  illegal  dam. 
Dyer  v.  Curtis,  72  Me.,  181. 

4.  The  Court  wall  not  prune  and  pare  off  from  this  series  of 
vicious  contracts  their  leading  vicious  features,,  and  save  the  bal- 
ance, and  then  giv^  effect  to  the  vicious  purpose  by  indirection. 

N orrington  v.  Wright,  114  IT.  S.,  188. 

Clark  V.  Baker,  5 Mete.,  452. 

Coos  Bay  Wagon  Co.  v.  Crocker,  4 Fed.,  577. 

Tobey  v.  Robinson,  99  111.,  222. 

Estate  of  Ramsey  v.  Whitbeck,  183  111.,  550. 

Douthart  v.  Congdon,  197  111.,  349. 

There  are  some  salient  features  of  this  agreement,  which 
stamp  it  as  being  against  public  policy.  * * * makes  no 

difference  whether  the  parties  were  actually  guilty  of  bribery 
and  corruption  or  not.  ’ ’ By  the  Court  in — 

Critchfielcl  v.  Bermudez  Asphalt  Paving  Co.,  174  111.,  466. 
Marshall  v.  B.  S 0.  R.  Co.,  16  Hjow.,  314. 

Doane  v.  Chicago  City  Ry.  Co.,  160  111.,  22. 

Brieske  v.  N.  Chicago  St.  Ry.  Co.,  82  111.  App.,  256. 

5.  A contract,  bond,  or  deed,  wdiich  provides,  among  other 
things,  to  do  something  forbidden  by  statute,  is  void  in  toto. 

Norton  v.  Simmes,  Hobart,  12  c. 


IS 


Mdleverer  v.  Redshdic^  \ Aid.,  do. 

Stdte  V.  Wilson,  7d  Kas.,  dd4. 

McMullon  V.  IloffmdH,  174  U.  S.,  (idl), 

the  court  saying: 

‘‘Where  parties  have  woven  a net  of  fraud  and  wrong,  it  is 
no  part  of  the  duties  of  Courts  of  Justice  to  unravel  the  threads 
and  separate  the  sound  from  the  unsound.” 

Widoe  V.  Wehh,  20  Ohio  St.,  435. 

Armstrong  v.  Toler,  11  AVheaton,  258,  278,  hy  Marshall, 
C.  J.,  cited  and  followed  in  Nash  v.  Monheimer , 20,  111., 
215. 

(1868)  Commissioners  of  Del.  County  v.  Andreivs,  18  Ohio 
St.,  49. 

G.  A new  contract  connected  with  or  growing  out  of  an  illegal 
transaction  is  itself  also  illegal. 

Cough  V.  Pratt,  9 Aid.,  526. 

Bell  V.  Quinn,  2 Sanford’s  Sub.,  146. 

7.  The  perpetual  flowage  contract  and  illegal  renewfal  lease  were 
devices  and  instruments  adapted  to  defeat,  and  were  successful  in 
defeating  free,  open  and  competitive  bidding  at  the  sale. 

Contracts  operating  to  defeat  the  State  in  this  way  are  void. 
Dement  v.  Rokher,  126  111.,  176,  and  cases  there  cited. 
Greenhood  on  Public  Policy,  Buie  175,  p.  183. 

Littler  V.  Jayne,  124  111.,  123. 

Lloyd  V.  Malone,  23  111.,  43. 

8.  The  contracts  were  attempted  evasions  of  the  statutory  prohi- 
bitions against  the  sale  of  the  90-foot  strip,  and  against  the  making 
of  a lease  of  either  land  or  water-power  for  more  than  20  years. 

These  contracts  grew  out  of  the  evasion  of  these  restrictions. 

All  such  contracts  are  void. 

Mansell  v.  Temple,  3 Gilm.,  93. 

MaKaly  v.  IMayor,  3 Hun.,  66. 

Greenwood,  Buie  470,  p.  545. 

9.  The  contracts  were  upon  grossly  inadequate  consideration. 
This  is  expressly  charged  in  the  Information.  (Abst.,  p.  26.) 


H) 


The  (‘oiisidei’atioii  was  foi*  $2,-!0f) 

The  (‘oiisideralioii  was  for  ‘‘IV’ 500 

OOie  eoiisideration  Avas  foT  “J” 50f) 

The  eoiisideration  Avas  for  “I\” 1,000 


$4,200 

For  C — $150  per  annum. 

Tlie  eAudence  shows  that  the  purported  franchise,  if  A^alid,  lias 
a A^aliie  of  OA^er  $2,000,000. 

In  suspicious  contracts  “the  bona  fides  should  shine  clear  as 
the  sun.” 

Sharsavood,  J.,  Bastion  v.  DougKerty,  3 Phila.,  30. 

The  failure  of  the  defendant  to  produce  evidence  removing 
this  difficulty  raises  the  presumption  that  the  evidence  would 
have  been  unfavorable  to  it. 

Stock  Exchange  v.  Board  of  Trade,  196  111.,  396,  407. 

(The  court  takes  judicial  notice  of  the  measurement  of  water 
in  power.  i ■ V • 

Sanborn  v.  People’s  Ice  Co.  (Minn.),  84  N.  W.,  641-3. 

Kent’s  “Mechanical  Engineer’s  Pocket-Book,”  p.  588.) 

Such  gross  inadecjuacy  of  consideration  is  ground  for  declaring 
the  contracts  void. 

Macoupin  Co.  v.  People,  58  111.,  191. 

Beall  y.  Bingmau,  227  111.,  295. 

Especially,  when  there  is  any  element  of  illegality  in  the  con- 
tracts. 

Henderson  v.  Palmer,  71  111.,  579. 

VII  r. 

THE  DECREE  ERRS  IN  THAT  IT  IS  NOT  CONSISTENT  AVriHI  ITSEEF  OR  THE 
PRIOR  RULINGS  AND  HOLDINGS  OF  THE  COURT  UPON  THE  CONTRACTS. 

1.  The  decree  is  made  Avithoiit  ])rejiidice  to  future  ])roceedings 
against  the  lease,  “Exhibit  B.”  (Abst.,  pj).  34-35.) 

The  same  infirmities  which  made  the  lease,  “Exhibit  B,”  illegal 
and  sul)ject  to  future  attack,  viz.,  the  clause  extending  its  life  be- 


yond  twenty  years,  the  illegal  use  of  canal  property,  the  absence 
of  authority  in  the  Commissioners,  and  the  evasion  of  the  restric- 
tions in  the  statutes — all  these  are  found  in  the  Flowage  Contract, 
‘‘Exhibit  A,’’  the  Feeder  Lease,  “Exhibit  C,”  and  most  of  them  in 
the  Pole  Line  Lease,  “Exhibit  K.’’ 

It  is  an  error  to  single  out  this  lease. and  save  it  out  for  some 
future  attack,  but  protect  all  the  others  against  such  attack. 

2.  It  is  an  error  in  the  application  of  the  theory  of  chancery 
proceedings,  for  the  Court  to  find  the  necessity  for  saving  out  the 
lease  for  future  attack  and  not  itself  go  on  and  administer  complete 
relief. 

3.  The  Court  during  the  trial  and  argument  expressly  held  the 
Flowage  Contract  itself  void  as  a perpetuity. 

(Abst.,  p.  1718.) 

It  is  inconsistent  with  such  holding  to  dismiss  the  bill. 

The  information  contains  the  prayer  for  general  relief,  and  by  ■ 
paragraphs  VII,  IX  and  X charges  in  apt  terms  that  these  con- 
tracts were  void.  Under  the  prayer  for  general  relief  the  Court 
should  have  decreed  them  to  be  void. 

Stanley  v.  Valentine,  79  111.,  544. 

Gibbs  V.  Davies,  168  111.,  205-211. 

Penn  v.  Vogler,  182  III.,  76-107-8. 

Hopkins  v.  Snedaker,  71  111.,  499. 

Walker  v.  Converse,  148  111.,  622. 

Cook  V.  Martyn,  2 Atkins,  p.  2,  (id.,  ).■ 

“Praying  general  relief  is  sufficient,  though  the  complain- 
ant should  not  be  more  specific  in  the  prayer  of  the  bill;  and 
Vr.  Robins,  a very  eminent  counsel,  used  to  say:  ^General 
relief  teas  the  best  prayer,  next  to  the  Lord^s  prayer.’  ” — 
Per  Lord  Hardwicke. 

4.  The  decree  dismissing  the  bill  on  the  merits  is  an  adjudica- 
tion against  the  State  on  all  points,  and  unless  reversed  is  liable 
to  be  pleaded  as  if  it  were  a bar  to  any  future  proceeding. 

Union  Pacific  By.  Co.  v.  C.  B.  I.  & P.  By.  Co.,  164  111.,  88. 

5.  The  decree  presents  the  same  inconsistencies  as  to  the  Kan- 
kakee Feeder  Lease. 


21. 


DIVISION  TWO. 


THE  STATE  OF  ILLINOIS  OWNS  THE  BED  OF  THE  DES  PLAINES  RIVEK,  AND 
SOME  ADJOINING  LAND  ON  EACH  SIDE  THEREOF  IN  SECTION  25, 
TOWN  34,  RANGE  8,  AT  THE  SITE  OF  THE  PROPOSED  DAM  AND  POWER 
HOUSE  OF  THE  DEFENDANT,  THE  ECONOMY  LIGHT  AND  POWER  COM- 
PANY, TOGETHER  AVITH  THE  WATERS  OF  THE  RIVER. 

I. 

THE  ACT  OF  1839  (FEBRUARY  26)  MAKES  THE  MEANDER  LINE  THE  BOUN- 
DARY OF  THE  LANDS  AT  THE  SITE  OF  THE  DAM,  AND  RESERA'ES  THE  BED 

OF  THE  RIVER  TO  THE  STATE. 

THAT  ACT  HAS  NEVER  BEEN  REPEALED. 

That  section  is  a canal  section  and  was  not  sold  by  the  State 
until  after  February  28,  1839,  after  the  enactment  of  the  statute 
of  February  28,  1839,  declaring  the  Des  Plaines  navigable;  and 
the  act  of  February  26,  1839,  making  the  meander  the  boundary. 

RIPARIAN  LAN  I)S BOUNDARY- — GENERAL  RULE. 

The  general  rule  of  law  in  Illinois  is  that  a conveyance  of  lands 
bounded  on  a river  (whether  navigable  or  not,  and  whether  mean- 
dered or  not)  includes  the  land  to  the  center  of  the  stream,  unless 
there  are  Avords  to  shoAv  a contrary  intent;  and  in  the  case  of  a 
meandered  stream,  unless  the  amount  of  land  outside  the  meander 
is  large  and  so  far  in  excess  of  the  amount  described  as  conveyed 
as  (1)  to  indicate  in  itself  that  there  was  no  intent  to  conAmy  the 
bed,  or  (2)  to  indicate  mistake,  or  (3)  to  indicate  fraud. 

In  tliis  case  the  area  of  the  S.  E.  Quarter  Section  25  (in  wliich 
the  dam  is  located)  indicated  on  the  S.  E.  fractional  quarter, 
114.72  acres  out  of  160,  a shortage  of  45.28  acres,  which  is  large 
enough  to  justify  the  statement  that  it  was  not  intended  to  be  con- 
veyed. 


Hoiiclc  V.  Yates,  82  Ilk,  179. 


F idler  v.  Dauphin,  124  111.,  542. 

Canal  Trustees  v.  Haven,  5 Gil.,  548. 

11  ad  road  Co.  v.  Scliurmeyer,  7 Wall.,  272. 

CANA  1 . LA  N 1 )S ) IT  N I )A  H Y STATU  TORY  RUT.E. 

The  Canal  Act  of  1839  was  passed  to  reverse  this  rule  as  to 
('anal  lands,  and  exclude  the  bed. 

^C\n  Ac'.t  to  amend  the  several  laws  in  relation  to  the  Illinois  and 
.Michigan  Canal”  (ai)i)roved  and  in  force  February  26,  1839)  : 

Sec.  2,  Cl.  11:  Lands  situated  upon  streams  which  have 

been  meandered  l)y  the  surveys  of  public  lands  l)y  the  United 
States  shall  he  considered  as  hounded  by  the  lines  of  those 
surveys,  and  not  by  the  stream.” 

Laws  of  1839,  p.  177. 

Same  statute  in  Stead’s  Canal  Comp,  p.  59. 

No  re])ealing  act  has  ever  been  passed  abrogating  this  provision. 
It  has  not  been  repealed  by  implication. 

‘UVn  Act  to  provide  for  the  completion  of  the  Illinois  and  Mich- 
igan Canal  and  for  the  payment  of  the  canal  debt,”  approved  and 
in  force  February  21,  1843  (L.  1843,  p.  54,  Stead’s  Canal  Comp.,  p. 
76),  does  not,  either  expressly  or' by  implication,  repeal  the  Act  of 
1839. 

The  Acts  are  for  different  purposes,  the  Act  of  1839  being  per- 
manent, the  Act  of  1843  being  temporary ; and  there  is  no  necessary 
conflict  between  them. 

‘‘The  repeal  of  an  existing  law,  by  implication,  is  not  favored 
and  * * * the  repugnance  between  statutes  must  be  so 

clear  and  plain  that  they  cannot  be  reconciled,  to  resort  to  this 
doctrine.” 

Citi)  of  East  St.  Louis  v.  Maxicell,  99  111.,  439,  443. 

Repeals  by  implication  are  not  favored. 

Harding  v.  B.  B.  I.  S St.  L.  B.  B.  Co.,  et  al.,  65  111.,  93. 
Hume  V.  Gossett,  43  111.,  299. 

Board  of  Supervisors  v.  Campbell  et  al.,  42  111.,  492. 

The  People  v.  Barr,  44  111.,  201. 

Fowler  v.  Pirhins,  77  111.,  274. 

Town  of  Ottawa  v.  Countg  of  La  Salle,  12  111.,  339. 


2:5 


VUliUje  of  llifdc  Parlv  v.  Cemetery  Ass^ii,  1 H)  111.,  14). 

Tyson  et  nx.  v.  Posileivoite  eJ  oL,  1:5  III.,  727. 

Hunt  V.  Chlcayo  Horse  S Dummy  Ry.  Co.,^2]  III.,  (138. 

Trausch  v.  County  of  Cook,  147  III.,  5:54. 

Bruce  v.  Schuyler,  4 Gil.',  221. 

Culver  V.  The  People,  161  111.,  89. 

Village  of  Ridgway  v.  County  of  Gallatin,  181  111.,  521. 

Covington  v.  City  of  East  St.  Louis,  78  111.,  548. 

The  People  v.  Murp/hy,  202  111.,  493. 

Rouse  V.  Thompson,  228  111.,  522. 

Covington  v.  City  of  East  St.  Louis,  78  111.,  548. 

23  Am.  & Eng.  Ency.  Law,  p.  489. 

11. 

THE  CANAL  LEGISLATION  SHOWS  SEVERAL  RENEWALS  OF  THE  ACT  OF  1839 
AND  A LEGISLATIVE  INTENT  AND  FOLICY  TO  KEEP  IT  IN  FORCE. 

Eederal  legislation  donating  canal  lands: — See  Acts  of  Congress, 
1822,  1827,  1833,  1842,  1854.  Canal  Comp.,  p]).  1-4. 

Canal  Lands — Legislation  on  Sales  of 

An  examination  of  the  Canal  Acts  shows  that  the  policy  of  the 
State  on  canal  lands  as  settled  hy  the  Act  of  1839  has  never  been 
changed. 

The  Canal  Act  of  1829  gave  the  Canal  Commissioners  unre- 
stricted power  of  sale.  Canal  Comp.,  p.  14. 

The  early  acts  of  canal  legislation  reserved  from  sale  to  the  State 
the  right  to  take  and  use  the  uniters  and  streams  free  of  all  claims 
for  damages. 

For  State  legislation  fixing  policy  of  State  on  canal  lands,  see 
Acts  of  1829,  1831,  1836,  1837.  (Canal  Comp.,  pp.  14,  17,  30,  38.) 

Act  of  1833  abolished  the  office  of  Commissioners.  (Id.,  p.  21.) 

Act  of  18:56,  creating  new  board,  provided  for  sales  of  certain 
specified  lands,  on  instalment  plan,  with  forfeitures  for' non-pay- 
ment. (Id.,  p.  30.) 

Act  of  July  21,  1837,  authoilzed  sale  of  certain  canal  lands.  (Id., 
p.  48.) 


24 


Act  of  1839,  February  22,  autliorizes  sale  of  certain  water  lots 
and  lands.  (Id.,  52.) 

Act  of  February  2b,  1839,  amends  ‘^tlie  several  laws  in  relation 
to  the  Illinois  and  Michigan  CanaF’  and  enacts  the  meander  line 
into  a true  boundary,  and  forbids  sale  of  bed  of  stream  in  canal 
lands.  (Id.,  59.) 

As  to  any  sale  made  or  action  had  after  the  amendment  took  ef- 
fect, this  amendment  became  a ]nn‘t  of  the  preceding  statute,  as  if 
originally  part  of  it. 

Holbrook  v.  Nichol,  36  111.,  161. 

Turney  v.  Wilton,  36  111.,  385,  at  393. 

Endlich  on  Statutes,  Sec.  294. 

Blair  v.  Chicago,  201  U.  S.,  400,  at  475. 

Richland  Co.  v.  People,  3 111.  App.,  210,  at  216.  • 

Reg.  y'.  Overseers,  3.  El.  & El.  (107  E.  C.  L.),  224. 

U.  8.  V.  Sapinkow,  90  F.  E.,  654 

Farrell  v.  State,  54  N.  J.  L.,  421. 

People  V.  Circuit  Judge,  37  Mich.,  287. 

The  object  of  reserving  the  river  bed,  like  that  of  reserving  the 
water,  was  to  insure  the  power  and  opportunity  for  obtaining  an 
ample  supply  of  water  (and  accessibility  thereto)  for  the  canal. 
It  became  in  substance  a part  of  the  canal. 

Acts  of  February  1, 1840  (Id.  p.  70)  required  the  sale  of  sufficient 
land  to  pay  interest,  subject  to  all  forfeitures  and  restrictions  re- 
quired by  previous  legislation. 

The  Mortgage  Act  of  1843,  by  its  Sec.  13,  and  other  subsequent 
Acts,  re-adopted  the  Act  of  1839. 

Act  of  February  21,  1843,  entitled  An  Act  to  provide  for  the 
completion  of  the  Illinois  and  Michigan  Canal  and  for  the  pay- 
ment of  the  canal  debt”  (Id.  76;  L.  1843,  p.  54),  conveyed  by  way 
of  mortgage,  the  canal  with  all  its  appurtenances  (plainly  includ- 
ing among  such  appurtenances  the  right  to  take  the  water  from 
the  riYer— and  the  reserved  river  bed)  as  security  for  a loan  for 
payment  of  the  State  canal  debt  of  $1,600,000.  No  power  of  sale 
of  the  canal  or  its  appurtenances  was  incorporated  in  the  Act. 

Sec.  10  reserved  lands  previously  sold,  and  in  case  of  forfeiture 


25 

or  relinqiiislnnont,  provided  for  re-sale  in  accordance  wifh  Ihc  laws 
of  this  State  regulating  the  sale  of  Canal  Lands. 

See.  L‘)  prohibited  sales  of  lands  by  the  Trustees  until  5 rnontiis 
after  completion  of  the  canal  hy  the  Trustees  (which  was  provided 
for  by  Sec.  13),  and  for  the  gradual  sale  during  4 years  thereafter 
“in  the  manner  prescribed  in  the  act  of  9th  January,  1836,”  and 
then  for  sale  of  residue. 

Sec.  18  made  the  Act  go  into  effect  when  and  as  soon  as  the  full 
amount  of  the  loan  was  subscribed,  and  the  Trustees  selected ; and 
when  the  Act  goes  into  effect,  so  much  of  the  former  acts  “as  com 
flicts  with  the  provisions  of  this  Act  are  hereby  repealed.” — (There 
was  no  conflict  with  the  meander  line  Act  of  1839.) 

Sec.  19  provided  that  whenever  the  trust  provided  by  this  Act 
shall  have  been  fidly  performed,  the  said  canal  and  the  canal  prop- 
erty that  may  then  remain  shall  revert  to  the  State.  (No  re-convey- 
ance was  necessary. 

Under  the  Acts  of  1836,  1837  and  1839  large  areas  of  canal  lands 
were  sold  by  the  Commissioners  on  the  installment  plan.  (The 
third  installment  on  sales  of  1836  was  $344,278.) 

(Clmal  Plistory,  Canal  Rep.  of  1900,  ]).  118;  Tr.,  p.  6398a.) 

Sales  since  1836  to  December,  1842,  are  re|)orted  by  Gov.  P'ord 
to  be  40,295  acres,  with  balance  then  due  the  State  on  account  of 
sales  of  $207,682.53.  (Abst.,  p.  1901;  Tr.,  ]).  6438.) 

After  the  financial  ])anic  of  1837,  in  which  the  State  and  its 
people  became  bankrupt,  a great  depression  followed  which  con- 
tinued until  after  1843.  These  sold  lands  were  forfeited  back  to 
the  State  and  had  to  be  resold  by  the  (kinal  Trustees.  In  the 
re-sale,  it  was  provided  by  the  Act  of  1843  should  be  according 
to  the  Act  of  1836  (which  was  already  amended  by  the  Act  of 
1839.)' 

The  Act  of  1836  had  already  been  amended  by  that  of  1839,  which 
was  part  of  it  (36  111.  161  &c  supra).  In  adopting  the  Act  of  1836, 
as  a regidation  of  sales  by  the  Trustees  the  Legislature  adopted  it 
in  its  amended  form,  including  the  meander  line  restriction. 

Two  different  rules  as  to  sales,  were  not  intended.  This  restric- 


lion,  wliioli  expressly  applied  io  rc-saU^s  of  forfeited  Icnids,  also 
a])plie(l  to  i'l’esli  sales  of  unsold  lands. 

Again,  the  A(‘t  1843,  March  4,  (]j.  1843,  j).  63,  (hmal  Comp.  86-7) 
regnlating  acts  of  Trustees  in  leasing  water-power  and  selling 
lands  on  which  it  conld  he  used,  T‘e-ado})ted  the  terms  of  the  act 
of  Fehrnary  22,  1831),  whicli  already  stood  as  amended  by  tlie  act 
of  Fehrnary  26,  1839,  with  the  meander  line  restriction. 

This  laud  at  the  site  of  this  dam  ivas  disposed  of  for  ivater- 
pou'er,  and  is  sahjeet  to  this  restrietiou. 

Act  of  1845,  February  27,  (R.  S.,  45,  p.  602,  Canal  Comp.,  p.  90) 
expressly  provided  that  the  sales  of  the  lands  to  which  it  applied 
shonid  he  in  accordance  with  the  Act  of  1839. 

Act  of  1847,  March  1,  amendatory  of  Act  of  1845  (L.  1847,  p.  24, 
Canal  Comp.,  p.  107)  expressly  snbstituted  the  State  Trustee  for 
the  Canal  Commissioner,  and  by  implication,  subjected  the  Trustee 
to  the  same  restrictions  as  the  Canal  Commissioners. 

These  re-enactments  of  the  Act  of  1839  plainly  shoiv  there  was  no 
repeal. 


in. 

THE  STATE  OWNS  THE  WATER  IN  THE  STREAM. 

Pluudeigh  v.  Damson,  6 111.  (1  Gihn.),  544,  at  550. 

The  several  Canal  Acts  heretofore  cited,  reserving  to  the  State  all 
the  waters  and  streams,  reserve  title  to  the  waters  of  the  Des 
Plaines.  (See  Acts  cited  above.  Division  Two,  Part  II.) 

The  State  owning  the  water,  owns  it  in  trust  for  the  whole  people 
for  the  paramount  right  of  navigation ; and  mbject  thereto  the  flow 
thereof  in  trust  for  the  riparian  owners. 

West  Chi.  St.  R.  E.  Co.  v.  People,  214  111.,  9,  20;  affirmed 
201  U.  S.,  506,  at  520,  524. 

Druley  v.  Adam,  102  111.,  at  193. 

People  V.  Canal  Appraisers,  33  N.  Y.,  461. 


27 


IV. 

THE  SURVEYS  OF  THE  RIVER  SHOW  THAT  IT  WAS  MEANDERFI). 

The  evidence  on  tliis  is  found — 

(.1)  In  the  Government  Field  Notes  (Transcript  pt).  5717-5720, 
57()o-5782).  (Abst.,  p.  1724.) 

(2)  In  the  Government  Township  Maps  of  this  survey,  McCul- 
lough Exhibits  1 and  1-A,  and  McCiillongh  Exhibits  2 and  2-A 
(Transcript,  pp.  3713-3916;  Abst.,  p.  1914-15). 

(3)  In  the  Government  Township  Map  of  the  township  at  the 
head  of  navigation  (Township  39  N.,  E.  12  E.)  (Transcript,  j). 
4932;  Abst.,  p.  1922). 

(4)  In  the  Canal  Surveys  of  1846-7,  by  which  the  Canal  Trus- 
tees themselves  drew  and  platted  the  line. 

Orr  Exhibit  ‘‘3”  (Atlas,  p.  3924;  Abst.,  1918). 

Orr  Exhibit  ‘M”  (x\tlas,  p.  3925;  Abst.,  p.  1919). 

Orr  Exhibit  ‘‘7”  (Atlas,  p.  3927;  Abst.,  p.  1920). 

These  three  Orr  Exhibits  are  co])ies  of  the  survey  by  the  canal 
surveyor,  A.  3.  Mathewson,  in  1846-47,  made  under  the  direction  of 
the  canal  trustees. 

(5)  In  the  ma])  called  ‘‘Endolpli  Exhibit  1.” 

This  last  is  a survey  made  at  the  time  of  the  trial  by  Surveyor 
Emil  Eiidolph,  assisted  by  Surveyor  II.  II.  Bremer.  It  delineates  the 
meander  line  of  the  Des  Plaines  Eiver  along  the  right  bank  at  the 
site  of  the  dam  and  shows  the  coffer-dam  and  the  progress  of  the 
work  as  it  existed  Aiiril  13,  including  the  location  of  the  ])ower- 
lionse  on  the  coffer-dam,  which  is  shown  to  be  upon  the  ])roject- 
ing  triangle  of  land  outside  the  meander  line.  (Ahst.,  p.  1922.) 

(6)  The  testimony  of  Engineers  1j.  E.  Cooley  (Al)st.,  ]).  845) 
and  Orr  (Abst.,  p.  381)  and  Surveyors  Rudolph  (Abst.,  ])p.  776- 
772),  Bremer  (Abst.,  ]).  786)  and  the  canal  ])lats  of  the  Mathew,- 
son  survey  of  1846  (Abst.,  p.  1918)  (summarized  in  this  division 
of  the  argument),  show  that  the  river  was  meandered  in  1821, 
according  to  the  ])ractice  of  engineers,  omitting  nothing,— and 
again  in  1846,  and  that  the  ])lat  of  the  meanders  of  1908  conforms 
to  the  plats  of  lioth  those  surveys. 


SUMMARY  OF  FIFLI)  NOTES  OF  THE  MEANDERS. 


( 1 ) Tlio  field  notes  show  tliat  tliey.  were  made  in  October,  1821. 

P.  OF  - 
TRANS. 

5720  On  ])age  1 of  the  exliihit  Field  Notes,  volume  250,  page  259, 
the  surveyor  records  as  follows  : 

‘Meandered  nj)  the  N.  hank  of  the  Illinois  River  in  Sect.  No. 
21  T.  No.  31  N.,  K.  8 E.” 

Then  follow  the  directions  of  the  courses  and  distances 
thus : 

‘‘S.  76  E.  13  00.” 

There  are  in  all  9 of  these  specifications  of  ^meanders’  with 
courses  and  distances,  and  marginal  notes.  In  the  middle  of 
the  list  of  courses  and  distances,  the  surveyor  notes  bluff 
leaves  the  river.” 

(This  is  at  the  'site  of  the  proposed  dam.) 

“Meandered  up  the  N.  bank  of  the  Illinois  River  in  Sect. 
No.  36  T.  No.  31,  R.  8 E.” 

5763  On  joage  11  of  the  exhibit  of  field  notes,  appears  the  follow- 
ing:— (Vol.  217,  page  158.) 

“Meanders  down  the  N.  Side  of  La  Plain  through  Sect.  No. 
1,  T,  38  N.  R.,  12  E,  from  the  head  of  navigation. 


‘S. 

31  E. 

4.06 

s. 

18  E. 

6.00 

s. 

2-1:  E. 

2.65 

s. 

13  E. 

6.93 

s. 

151  W. 

5.00 

s. 

301  W. 

7.50 

s. 

31  W. 

13.00 

s. 

13  E. 

3.50 

s. 

51  W. 

13.00 

s. 

7 W. 

7.00 

s. 

16  W. 

8.76 

s. 

Ill  W. 

1.21 

s. 

6'E. 

7.23 

Oct.  17th,  1821,  Jno. 
Walls  to  the  cor.  of  F 
Sects.  1 and  12.” 

p.  207. 

‘^Commenced  meanderimg  on  the  west  bank  of  an  island  in 
Illinois  River  at  the  corner  of  fract’l  Sect.  11  and  11  T.,  31  N. 
of  R.  9 E.,  thence  down  the  River  with  the  meanders  thereof.” 
(This  and  the  succeeding  pages  referring  to  “the  isl- 
andrefer  to  Treat’s  Island. 


And  (*()]Hiiioii(*(‘  lo  (lesi^'iinle  the  as  IIk;  ‘Illinois 

lliver’  from  the  moutli,  up  what  we  call  the  l)(;s  IMniries, 
and  uses  tlie  term  ‘Illinois  River’  seveTiteeri  tinnjs  in 
these  field  notes,  and  the  term  “LaPlain”  three  times. 
It  was  suggested  eontva  that  the  language  of  the  Act  of 
(huigress  of  1822  a])out  connecting  the  waters  of  Lake 
Michigan  and  tlie  Illinois  River,  showed  that  the  name 
‘^Bes  Plaines’’  was  disregarded,  but  here  the  Government 
Surveyor,  in  surveying  this  very  river,  under  direction 
of  Congress  and  reporting  it  to  the  Government,  de- 
scribes it  as  the  ‘Illinois  River,’  only  the  year  before  that 
Act  was  passed,  plainly  the  term  ‘Illinois  River,’  as  used 
in  that  Act  included  as  part  of  it,  the  Des  Plaines  River.) 
5762  In  Volume  247,  page  156  (Field  notes,  pages  42-3),  the  sur- 
veyor says,  “continued  through  Sect.  12,  * * * carried 

up  across  the  Portage  Creek  or  swamp  Oct.  16,  1821,  John 
Walls.” 

(2)  and  (3).  The  Government  Township  Maps  set  out  in  Items 
(2)  and  (3)  above,  made  by  Surveyor  John  Walls  in  1821,  confirm 
this. 

V. 

The  cases  on  the  meandering  of  rivers  examined : 

1848  Canal  Trustees  v.  Havens,  5 Gilni.,  548. 

1850  Canal  Trustees  v.  Havens,  11  111.,  554. 

1868  Railroad  Co.  v.  Scliurmeier,  7 Wall.,  272,  286. 

1889  Jeffris  V.  East  Omaha  Land  Co.,  134  IT.  S.,  178,  196. 

1890  Hardin  v.  Jordan,  140  IT.  S.,  371,  381. 

1902  Kean  v.  Calumet  Canal  Co.,  190  U.  S.,  459. 

1896  Fidler  v.  Shedd,  161  III.,  462,  464. 

1902  Albany  B rid  ye  Co.  v.  People,  197  111.,  199,  205. 

VI. 

Grants  in  DEROGxiTiON  of  public  rights  are.  sthictly  construed 

AND  NOT  EXTENDED  BY  IMPLICATION. 

Charles  River  Bridge  v.  Warren  Bridge,  11  Peters,  426-50. 
Hnell  V.  City  of  Chicago,  133  111.,  439. 

So  grants  of  lands  under  or  around  a navigable  stream  imply 
no  intent  to  discontinue  the  public  right  therein. 

Shively  v.  Boivlhy,  152  IT.  S.,  10,  58. 


‘M) 


Coiin.^  dc.,  Lumber  Co.  v.  Oleoif,  (ifj  N.  TI.,  380;  13  L.  ll.  A., 
832. 

ThompHoii  V.  JCirer  Co.,  58  N.  11.,  1. 

‘‘Only  tliat  wliic'li  is  f^raiited  in  (-lear  and  explicit  terms 
passes  by  a ^‘rant  ot*  property,  franchises  or  privileges,  in 
wlii(‘li  llie  government  or  the  public  lias  an  interest.” 

All  doubts  are  resolved  in  favor  of  the  State. 

Coosair  Mining  Co.  v.  South  Carolina,  144  U.  S.,  550,  561. 

Ildiinihal,  dc.,  U.  Co.  v.  Missouri  River  Paeket  Co.,  125  U. 
S.,  260-271. 

Sfe/ui  V.  Bienville  Water  Supply  Co.,  141  U.  S.,  67-80. 

“Grants  of  that  character  are  to  he  construed  strictly  in 
favor  of  the  iiublic,  and  whatever  is  not  unequivocally  granted 
is  withheld.  Nothing  ]uisses  by  mere  implication.”  Ibid. 

Holyoke  Co.  v.  Lyman,  15  Wall.,  500. 

So  even  a charter  right  to  construct  a dam  across  the  stream 
does  not  exempt  the  grantee  from  the  obligation  of  a subsequent 
statute  requiring  the  construction  of  a fishway. 

Parker  v.  People,  111  111.,  581. 

Holyoke  Co.  v.  Lyman,  15  Wall.,  512,  affirming  104  Mass., 
449. 

Clement  v.  Metrop.  West  Side  “L”  B.  R.  Co.,  123  Fed. 
Kep.,  271. 

So  a grantee  of  public  land,  on  which  is  a dam  causing  the 
overflow  of  adjoining  land,  has  no  right  to  maintain  the  dam  after 
such  adjoining  lands  are  taken  by  other  settlers. 

Wilcoxon  V.  McGhee,  12  111.,  386. 

The  State  was  reasonably  more  particular  to  guard  its  title  to 
the  land  grant  conveyed  to  it  for  public  uses  and  its  own  grants  of 
portions  thereof,  than  it  was  in  construing  grants  of  the  general 
government  to  individuals  for  private  uses  from  the  general  body 
of  the  i3ublic  domain.  Hence,  the  limitations  in  the  Act  of  1839. 

So  the  grant  by  the  State  of  the  right  to  maintain  a dam  in  a 
navigable  stream,  while  valid  so  long  as  Congress  has  not  acted, 
is  subject  to  the  right  of  Congress  to  interfere  in  the  matter  when- 
ever it  may  deem  necessary  so  to  do. 

Pound  V.  Turek,  95  U.  S.,  459. 


V 1 1 . 


:n 


Tllb:  I’HOCKKDING  BY  INFORMATION  IS  ANALOGOUS  TN  SOMR  RESPFCTS  TO 
F.JFA’TMRNT  AND  IN  SOME  RESPECTS  TO  QUO  WARRANTO. 

It  is  analogous  to  ejectment  in  tliat  it  involves  a trial  of  the  title 
to  land: 

] . In  the  bed  of  tlie  stream, 

2.  In  the  public  easement, 

d In  the  claim  of  the  defendant  to  the  right  of  perpetual  ease- 
ment of  overdowage. 

If  treated  as  an  ejectment  bill,  then,  under  the  doctrine  that 
equity  follows  the  law,  the  complainant  is  entitled  to  a new  trial 
as  of  right. 

Rev.  St.,  Ch.  45,  sec.  35. 

And  the  court  will  make  its  order  of  reversal  in  time  to  enable 
the  complainant  to  take  its  new  trial. 

Strecni  v.  Lloyd,  128  Ilk,  493. 

The  rule  as  to  new  trials  in  ejectment  is  more  liberal  than  in 
other  proceedings. 

mies  V.  Caldwell,  2 Walk,  35-41. 

Equator  Co.  v.  Hall,  lOb  U.  S.,  8f). 

Sedgwick  on  Trial  of  Title  to  Land,  2 Kd.,  secs.  57(5-579. 

The  state  cannot  maintain  an  action  of  trespass  or  ejectment 
to  try  title  to  its  lands.  Its  remedy  is  by  information  for  intru- 
sion. (The  present  information  embraces  this  feature  as  auxiliary 
to  the  more  freipient  information  in  chancery.) 

State  V.  Arledye,  1 Bailey,  551. 

Jaeksou  v.  Winslow,  2 Johnson,  80. 

2 Washburn  Real  Property,  539. 

3 Bl.  Comm.,  2(51-2. 

The  special  reasons  for  liberality  in  granting  new  trials  in 
ejectment  were  the  ])ernianence  of  the  estate  involved,  and  its  ef- 
fects on  governmental  grants,  heirship  and  inheritance. 

All  of  these  reasons  apply  with  greater  force  to  the  title  of  the 


stiite  ill  tlie  bod  of  this  river,  the  existeiiee  and  preservation  of  this 
pnblie  easement  for  future  generations,  and  tlie  protection  of  tlie 
riglits  of  the  iieojde  against  the  assertion  of  perpetual  grants  for 
jirivate  uses. 

THE  imOCEEDlNG  IS  IN  SOME  RESPECTS  ANALOGOUS  TO  QUO  WARRANTO. 

Tlie  Information  for  intrusion  is  tlie  state hs  only  remedy  to  pro- 
tect its  titles. 

State  V.  Arledfje,  1 Bailey,  551. 

Jackson  v.  Winsloiv,  2 Johnson,  80. 

2 Washburn  R.eal  Property,  539. 

The  Information  for  intrusion  protects  the  title  of  the  state  to 
its  corporeal  hereditaments,  and  its  incorporeal  hereditaments  in 
land. 

The  Information  in  the  nature  of  quo  warranto  protects  the  title 
of  the  state  to  its  franchises  and  incorporeal  hereditaments  inci- 
dental to  sovereignty. 

Bev.  St.,  Ch.  112,  Sec.  1.  • 

High  on  Extraordinary  Remedies,  sec.  602  et  seq. 

Chicago  Mutual  Life,  etc.,  Association  v.  Attorney  Gen- 
eral,  127  111.,  257. 

The  right  of  the  state  in  its  lands,  and  its  incorporeal  heredita- 
ments in  rivers,  which  it  protects  by  Information  against  intru- 
sion, is  of  equal  dignity  with  its  right  to  incorporeal  heredita- 
ments in  franchises,  which  it  tests  and  protects  by  Information  in 
the  nature  of  quo  warranto. 

Upon  an  Information  in  the  nature  of  quo  warranto,  the  burden 
of  proof  is  on  the  defense  to  show  non-user  of  franchises,  or  to 
justify  by  showing  legal  right. 

Glint erman  v.  People,  138  111.,  518. 

Catlett  V.  People,  151  111.,  16. 

111.  Midland,  By.  Co.  v.  People,  84  111.,  426. 

The  same  rule  is  recognized  in  cases  of  Information  for  intru- 
sion upon  the  rights  of  the  State. 

People  V.  City  of  St.  Louis,  10  111.,  (5  Gilm.),  351. 

Revell  V.  People,  177  111.,  468. 


People  V.  V(Ui(lerl)Uf , 120  N.  287. 

]]^esf  Chieoffo  Si.  Uy.  Po.  \.  P(‘(}ple,  214  III.,  0;  201  IJ.  S., 

ooi;. 

It  is  ex})i‘essly  a])|)lie(l  to  an  a])])li('ati()ii  ])y  the  (o-owii  to  ])rovrait 
tlie  erection  of  works  in  waters,— the  crown  claiming  ownersiiip. 

Afiorney  Gen.  v.  llieliavds,  2 Anstrntlier’s  Cliy.,  003-014. 

And  in  sncli  case  it  is  no  answer  to  say  that  there  was  a remedy 
at  law. 

Ally.  Gen.  v.  Gaheay,  1 Aloll.,  95. 

And  it  is  not  necessary  to  prove  that  injury  will  result  to  the 
])nblic.  Tiiat  conclusively  follows  the  infringement  of  the  public 
right. 

, The  court  will  not  balance  injuries  and  benefit. 

People  V.  St.  Louis,  5 Gfihn.,  350. 

Revell  V.  People,  177  Ilk,  468. 

Atty.  Gen.  v.  Ely,  de.,  R.  Co.,  L.  Ih,  4 Ch.,  184. 

Atty.  Gen.  v.  CoekennoufJt , L.  ll.,  18  Eq.,  172. 

So  in  an  action  between  private  parties  based  n])on  the  alleged 
interruption  of  navigation  by  the  construction  of  a l)ridge  across 
the  ])nblic  navigable  waters  of  the  Arthur  Kill,  a portion  of  Stateii 
Island  Sound,  the  defendants  insisted  that  the  court  must  presume 
that  the  conditions  im])Osed  by  the  Act  of  Congress  in  reference  to 
such  structures  had  been  ('omplied  with.  The  court,  AV allace,  J., 
said : 

‘‘I  have  no  hesitation  in  deciding  that  those  who  obstruct 
the  use  of  a public'  highway,  whether  on  land  or  water,  must 
justify  the  ac‘t  by  ])roducing  their  authority  and  proving  that 
they  have  exercised  it  in  essential  conformity  to  its  terms.” 

Pennsylvunid  Ry.  Co.  v.  Rolf i more,  de.,  Ry.  Co.,  37  Eed. 

H.,  129. 

To  the  same  effect : 

Texareana,  ete.,  Ry.  Co.  v.  Parsons,  74  Fed.,  408. 

Doxsey  v.  Jjong  I.  R.  Co.,  35  linn,  362. 

Cantrell  v.  Knoxville,  ete.,  R.  Co.,  90  Teim.,  638;  18  S.  AV.. 

271. 


:u 


Some  analogy  may  be  foimd  in  actions  of  trespass  to  lands;  and 
tlie  rides  of  evidence  in  refereiu'e  to  })roof  of  titles  therein,  as  in 
the  following  (*ases: 

If  a party  justify  a trespass  by  claiming  title  to  premises  un- 
der a jiatent  wbic'li  is  good  in  ])art  and  bad  in  part,  the  burden  of 
proof  is  on  him  to  show  himself  within  the  efficient  call  of  the  in- 
strument under  which  he  justifies. 

Rond  ell  v.  Fay,  32  Cal.,  354. 

Where  the  defendant  sets  up  a defense  of  private  right  of  way 
by  prescri})tion  and  the  issue  is  on  that  plea,  the  liurden  of  proof 
as  to  the  alleged  right  of  way  is  on  the  defendant. 

Black  V.  O’Hara,  54  Conn.,  17 ; s.  c.,  5 At\.,  598. 

Where  the  defendant  admits  his  act  of  spoliation  it  devolves 
upon  him  to  show  that  it  was  not  committed  on  plaintiff’s  prop- 
erty, and  his  failure  to  do  so  justifies  the  direction  of  a verdict  for 
plaintiff. 

Campbell  v.  King,  32  Mo.  App.,  38. 

In  trespass  for  removing  property  from  plaintiff’s  land,  where 
defendant  claims  a license  to  enter  and  remove  it  the  burden  is  on 
him  to  show  it. 

Collier  v.  Jenks,  19  E.  I.,  493;  s.  c.,  34  Ath,  998. 


DIVISION  THREE. 


The  Des  Peaines  River  is  a Navigable  Stream. 

I. 

HISTORICAL  MATTER. 

(Since  1848  the  river  was  substantially  superseded  by  the  I. 
and  M.  Canal,  just  as  later  that  canal  Was  substantially  super- 
seded by  the  railroad  on  each  side  of  it,  as  the  avenue  of  com- 
merce chiefly  used;  therefore  the  historical  evidence  acquires 
special  importance.) 

1.  CLASSIFICATION  OF  HISTORICAL  MATTER. 

The  historical  sources  concerning  the  navigability  of  the  Des 
Plaines  River  fall  naturally  into  three  broad  classes : 

A. 

Original  narratives  of  the  passage  of  the  des  plaines  river  by 

DISCOVERERS  AND  TRADERS. 

Among  these  are  the  following: 

a.  Marquette  and  Joliet,  having  learned  of  another  waterway  to 
Mackinac  than  the  one  by  the  Fox  and  Wisconsin  Rivers,  by  which 
they  had  reached  the  Mississippi,  went  up  the  Illinois  River  and  the 
Des  Plaines  River. 

59  Thwaites’  desuit  Relations,”  Ril.  (Abst.,  pp.  685- 
699). 

h.  The  second  recorded  use  of  the  Des  Plaines  River  was  made 
by  Father  Marquette  on  his  second  voyage  to  the  Illinois  Indians. 
59  Thwaites’  '‘Jesuit  Relations,”  187.  (Abst.,  p.  688.) 

6*.  A very  full  account  of  the  passage  from  Chicago  down  the 
Des  Plaines  in  1699  is  given  by  Father  St.  Cosme,  a priest  of  the 
Seminary  of  Foreign  Missions.  (Abst.,  pp.  700-701.) 

Shea,  “Early  Voyages  Up  and  Down  the  Mississippi,” 
54-56.  (Abst.,  700-701.) 


d.  In  Jean  -Ba])liste  Pein-anlt,  a trader  from  Montreal  to 

Caliokia,  spent  a year  in  tlie  latter  village,  where  he  eolleeted  a 
load  of  furs  and  other  goods  and  returned  to  the  lakes  hy  the  Des 
Plaines  River  and  the  Chicago  x)ortage. 

J S(*hoolcraft,  ‘‘  Indian  Anticjuities,”  .351.  (Ahst.,  pp.  703- 
704.) 

e.  In  1700,  Hugh  Howard,  a trader  from  Detroit,  after  making 
the  (‘ircuit  of  the  lakes  trading  at  different  points,  ])assed  down 
the  Des  Plaines  and  Illinois  to  Cahokia. 

/'.  1823,  Narrative  of  Provisions  for  Ft.  Dearborn  brought  from 
St.  Lonis  11])  the  Des  Plaines.  ( In  account  of  Major  Long’s  Expedi- 
tion to  sources  of  St.  Peters  River.)  ( Ahst.,  j)}).  704-712.) 

().  From  1825,  onwards,  John  Hamlin  of  Peoria  made  trading 
journeys  np  the  Des  Plaines  River  in  a Durham  boat. 

Drown,  “Record  and  Historical  Review  of  Peoria,”  83, 
84.  (Ahst.,  ]).  959.) 

li.  In  1847,  a boat  with  sixteen  men  and  a yoke  of  oxen  was  sunk 
in  the  lies  Plaines  River. 

“Joliet  Signal,”  June  8,  1847.  (Ahst.,  403-4.) 

i.  A case  which  is  testified  to  by  George  W.  Reed' is  that  of  the 
carriage  of  farm  products  in  1834  down  the  Kankakee  River  and 
np  the  Des  Plaines  en  route  to  Chicago.  This  is  described  in  Wood- 
ruff’s “History  of  AVill  County.” 

ethers  ap])ear  in  the  evidence.  (Ahst.,  p.  157.) 

B. 

CONTEMPORARY  STATEMENTS  THAT  THE  DES  PLAINES  RIVER  WAS 

NAVIGABLE. 

This  class  of  istatements  may  be  further  divided  into  two  sub- 
classes. 

(1)  Contemporary  directions  to  travelers  as  to  the  best  way 
of  getting  into  Illinois.  This  would  include  contemporary  maps 
and  guide  books.  As  historical  testimony  these  are  as  valuable  as 
class  I. 

Among  these  are : 

a.  i\[axo  made  by  Marciuette  and  xmblished  by  Thevenot  in  Paris 


37 


ill  1081;  reproduced  in  Tliwaites’  ^Mesuit  ’Relations,”  Vol.  59,  p. 
ir)4,*sliows  tlie  portage.  (Abst.,  p.  713.) 

b.  jNIap  by  Joliet  in  1074,  })n])lislied  by  Tliwaites  in  liis  ‘Mc^siiit 
Relations,”  Vol.  59,  ]>.  80,  shows  the  ])ortage.  (Abst.,  080.) 

c.  Dana’s  ‘Mlescription  of  the  Bounty  Lands,”  p.  57,  Route  Xo. 
2,  printed  in  1819.  (Abst.,  pp.  714-718.) 

d.  ‘‘The  X'avigator, ” printed  in  1824,  p.  113.  (Abst.,  pp.  718- 
719.) 

e.  Gazetteer  of  the  States  of  Illinois  and  Missouri  by  L.  C.  Beck 
in  1823,  p.  151.  (Abst.,  pp.  723-720.) 

f.  “Illinois  in  1837,”  pp.  34-30  (excluded  by  court).  (Abst., 

p.  722.) 

Others  appear  in  the  evidence. 

(2)  The  second  sub-class  is  made  up  of  statements  by  contem- 
poraries that  the  Des  Plaines  Eiver  was  used  as  a regular  water- 
way. Their  statements  show  contemporary  knowledge  and  are 
based  either  upon  a personal  investigation  or  personal  knowledge. 

a.  Marquette’s  statement  that  he  and  doliet  learned  from  the 
Indians  a shorter  waterway  to  the  Great  Lakes  than  the  Fox  and 
Wisconsin  route  by  which  they  had  come.  The  shorter  route  was 
the  Illinois  and  Des  Plaines  Rivers,  as  is  sliowti  l)y  the  maps  which 
have  been  left  by  both  explorers.  Statement  in  Tliwaites’  “Jesuit 
Relations,”  Vol.  59,  p.  Ibl.  (Abst.,  p.  685.) 

5.  Dablon’s  suggestion  of  the  feasibility  of  making  a canal. 
This  is  based  upon  Joliet’s  observation  printed  in  Margry,  Decou- 
verte  et  Efabllsse/meyifes  des  Fraticais,  etc.,  Vol.  1,  267.  (Abst., 
]).  732.) 

r.  Statement  in  a letter  by  Governor  St.  (1air  written  in  1790, 
])rinted  in  Smith’s  St.  Glair  Papei-s,  Vol.  1,  p.  174.  (Abst.,  pp. 
728-729.) 

d.  Major  Long’s  Report  in  1817,  printed  in  the  United  States 
Government  publication  as  Executive  Document  No.  17,  I6th  Gon- 
gress.  First  Session,  published  in  House  Documents  12  to  13,  Serial 
No.  32.  (Ahst.,  p.  732.) 

dames  Flint,  “Letters  from  America,”  1818-1820,  in 


e. 


38 


Tliwaitos’  “l^]arly  Western  3^ravels,”  Vol.  9,  p.  18().  (Abst.,  p. 
73i).) 

/’.  George  Ogden,  “Letters  from  tlie  West,”  1821-1823,  in 
Tliwaites’  “Karly  W'estern  Ti*avels,”  Vol.  19,  p.  54.  (Abst.,  p. 
730.) 

(j.  “Keport  of  (knmnittee  on  Roads  and  Canals,”  March  30, 
1826.  Report  No.  53  in  Report  of  Committees,  Second  Session, 
Eighteenth  Congress.  (Abst.,  pp.  731-732.) 

INEanv  others  appear  in  the  evidence. 

C. 

CONCLUSIONS  BEACHED  BY  HISTOEIANS  OF  RECOGNIZED  STANDING  AFTER 
MAKING  A STUDY  OF  THE  SOURCES  OF  MATERIAL  IN  REGARD  TO  THE 
NAVIGABILITY  OF  THE  DES  PLAINES  RIVER. 

a.  Parkman,  “LaSalle  and  the  Discovery  of  the  Great  West,” 
p.  69.  (Abst.,  pp.  733-739.) 

\).  Justin  W^insor,  “Mississippi  Basin,”  p.  24.  (Abst.,  pp.  741- 
742.) 

c.  L.  Perrand  in  Hart’s  “x\merican  Nation,”  Vol.  2,  p.  26. 
(Abst.,  pp.  747-8.) 

Others  appear  in  the  evidence. 


2.  HISTORICAL  MATTER  CHRONOLOGICALLY  ARRANGED. 

1673 —  Marquette  and  Joliet:  Thwaites’  “Jesuit  Relations,”  Vol. 

59,  pp.  161-7.  (Abst.,  pp.  686-688.) 

Whnsor’s  “Narrative  and  Critical  History  of  America,”  Vol. 

4,  pp.  178-9.  (Abst.,  pp.  1659-60.) 

Breese’s  “Earlv  Historv  of  Illinois,”  pp.  235-270.  (Abst., 
p.  737.) 

1674 —  Joliet’s  Report  to  Governor  Frontenac;  and  his  to  the 

French  Government,  ibid.  (Abst.,  p.  1661.) 

(Dablon’s  “Narrative  of  Joliet’s  Discoveries,”  Vol.  58,  Jes. 
Rel.;  Atlas,  p.  3921;  Abst.,  p.  713.) 

1674— Joliet ’sAtap  (Atlas,  p.  3919;  Abst.,  pp.  686,  688). 

Thwaites’  “Jesuit  Relations,”  Vol.  59,  p.  86; 

4 Winsor  209. 

1674-5 — “Marquette’s  Second  Voyage,”  59  Jes.  Rel.,  185,  211. 
(Abst.,  p.  688.) 


' :]9 

Parkinaii’s  “LaSalle  and  tlie  Discovery  of  the  (ii-eat  West,” 
])]).  ()S-9.  (Abst.,  p.  7d().) 

]()77 — Enlarged  map  from  Joliet:  Parkmari’is  “LaSalle  and  the 
Discovery  of  the  (Jreat  West.”  (Al)st.,  j).  7d8.) 

]()99 — St.  Cosine;  Shea’s  “Karly  Voyages  Up  and  Down  the  Mis- 
sissippi,” p]).  7)4,  h'O.  (Abst.,  ]).  700.) 

1787 — Ordinance  of  July  13. 

1789,  Aiig.  7 — Act  continuing  the  Ordinance  in  force; 

1 U.  S.  St.  at  L.  50. 

1790 — Hugh  Heward’s  Journal:  “A  Trip  from  Detroit  to  Kas- 
kaskia.  ’ ’ 

(Burton  manuscript  of  Detroit  and  Chicago  Historical  So- 
ciety, in  copy.)  (Abst.,  pp.  745-6.) 

1790 — Governor  St.  Clair’s  Eeport  to  President  AYashington. 

2 St.  Clair  Papers,  174.  (Abst.,  p.  728.) 

1793-1797 — Imlay’s  “Topographical  Description  of  North  Amer- 
ica.” (Abst.,  p.  726-7.) 

1795 — Treaty  of  Greenville,  granting  right  of  passage  up  and  down 
the  Eiver. 

TV  Am.  St.  Papers,  Class  2,  Indian  Affairs,  Vol.  1. 

(Abst.,  ])p.  760-2.) 

1801-1811 — “The  Navigator,”  approximately  one  edition  each 
year;  12th  edition,  p.  113.  (xAbst.,  ])p.  718-739.) 

1816— Pottawmtomie  Treaty  (By  Chief  Black  Partridge),  ceding 
tract  ten  miles  wide  on  each  side  of  the  river.  (Abst.,  pp. 
762-3.) 

1816-1817 — Survey  and  Eeport  by  Major  S.  H.  Long,  Ex.  Doc. 
No.  17,  St.  Papers,  1st  Session,  16th  Congress. 

(Atlas,  ]).  3921;  Abst.,  pp.  706-712.) 

1819 — Dana’s  “Description  of  the  Principal  Eoads  and  Eoutes  by 
Land  and  AVater  Through  the  Territory  of  the  United 
States.”  (Abst.,  ])]).  714-716.) 

1819 — ^Eield’s  “Letters  from  Americ'a,”  published  Edinborough, 
1822,  ]).  186.  (Abst.,  ])p.  729-30.) 

1821 — Ogden’s  “Letters  from  the  AVest,”  published  New  Bed- 
ford’s, 1823.  (Abst.,  p.  730.) 

1821 — IT.  S.  Survey  “Meanders  Down  the  North  Side  of  the  Le 
Plein,  from  Section  1,  T.  38,  N.  E.  12,  E.,  from  the  Head 
of  Navigation,  Oct.  17,  1821,  John  Walls.” 

1823— Major  Long’s  Expedition,  Narrative  of  B.  Keating  (Al)st., 
pp.  705-6)  : 

“Lieut.  Hopson,  wdio  accompanied  us  to  the  Des 
Plaines  Eiver,  told  us  that  he  had  traveled  it  with  ease 
in  a boat  loaded  with  lead  and  flour.” 

1823 — Beck’s  Gazetteer  of  Illinois  and  Alissouri,  ]nd)lished,  Al- 
bany 1823,  i)p.  19-20.  (Abst.,  pj).  723-6.) 

1825-1832 — Hamlin’s  traffic  between  Peoria  and  Chicago;  narrated 


40 


in  Drown’s  “ 1 listoric-a!  \4(*\v  of  Peoria,”  {).  80. 


(Abst., 


]))).  (578-0.) 

1820 — 11.  S.  Report  on  (-anal,  Eigliteentli  Congress,  Second  Ses- 
sion, House  Reports,  Vol.  1,  Serial  No.  .122  (Abst.,  pp. 
700-1)  : 


“OOie  experience  to  wlii(‘'li  tlie  committee  refers  is  that 
of  many  years,  and  it  is  a matter  of  liistorical  notoriety: 
it  is  that  of  repeated  passages  liaving  been  made  by 
uninterrupted  navigation  from  the  river  into  the  lake.” 


0.  SUMMAIUES  BY  HISTORIANS  AND  ENCYCLOPEDISTS. 

Parkman’s  ‘^LaSalle  and  the  Discovery  of  the  Great  West,” 
pp.  (55,  70.  (Al)st.,  ])]).  705-0.) 

1834 — Schoolcraft’s  ‘^Expedition  to  the  Source  of  the  Mississippi,” 
p.  121.  (Abst.,  pp.  709-40.) 

1836 —  Murray’s  “Encyclopedia  of  Geography,”  American  edition, 

co])yright  1836.  (Abst.,  pp. .213-14.) 

Smith’s  “History  of  AVisconsin,”  published  Madison,  1854, 
AMI.  1,  ])]).  82-M  (Abst.,  pp.  740-1.) 

Andraes’  “History  of  Chicago,”  pp.  (57,  91,  92,  100,  107,  108. 
(Abst.,  p.  1916.) 

1837 —  ’’Illinois  in  1837,”  published  in  Philadelphia,  1837,  pp.  33-36. 

(Abst.,  p]L  208,  722.)  _ (Excluded  by  the  Court  below, 
Abst.,  ]L  960.) 

(“The  Portage”  is  made  a heading  in  the  Argument, 'under 
which  citations  from  the  works  above  mentioned  and  from  numer- 
ous others  are  collected.) 


II. 

PHY^SICAL  CHARACTERISTICS  OF  THE  ILLINOIS  AND  DES  PLAINES  RIVERS, 

1.  The  immediate  reach  of  the  river  most  involved  in  the  16 
miles  from  Joliet  to  the  confluence  with  the  Kankakee: 

2.  Elaborate  descriptions  of  this  reach  as  well  as  of  the  rest  of 
the  Lower  Des  Plaines  and  Illinois  are  found  in  the  following: 

Surveys  and  Reports  on  by  L^.  S.  Engineers : 

1816-1817 — Major  S.  H.  Long,  ICtli  Congress,  1st  Session,  Doc. 
No.  17.  (Abst.,  ]).  706.) 

1825 — L".  S.  l\eports  on  Canal, — on  memorial  of  Illinois.  Refer- 
ence to  use  of  River  in  Natural  State. — House  Reports  of 
18th  Congress,  2d  Session,  Vol.  1,  Serial  No.  172. 


41 


182G — ^larcli  .‘U),  Ditto,  snino  report  (‘orioiirrod  in  by  whole  lioiis(;. 
(Abst.,  pp.  7o0-7dt.) 

18()7 — Report  of  (4en.  J.  II.  Wilson,  Feb.  15,  18f)7,  H.  R.  48tli  Con- 
gress, 1st  Session,  Fx.  Doe.  No.  IG.  (Abst.,  p)).  G48-50, 
1G98-9.) 

18G8 — Second  Report  of  Gen.  J.  H.  Wilson,  with  Asst.  Engineers 
Gooding  and  Worrall.  • , ' 

(1  IT.  S.  Engl*.  Rep.  18()8,  pp.  442,  459-4G5;  Abst.,  pp. 
1484-5.) 

1874-5 — Report  of  Col.  J.  N.  Macomb  and  Asst.  F.  C.  Doran. 

(U.  S.  Engr.  Rep.  1875,  App.  CC7,  pp.  94-100;  Abst., 
p.Gol.) 

1884 — U.  S.  Engineers  Reports,  1884,  App.  H.  H.  Vol.  Ill,  pp. 

1957-1962.  (Known  as  Maj.  Benyanrd.)  (Abst.,  p.  1699.) 
1887 — Report  of  Major  Handbnry,  Comstock  Board,  and  Engineer 
Duane. 

(U.  S.  Engrs.  Rep.  1887,  Vol.  Ill,  App.  I.  I.,  pp.  2122- 
2129;  Abst.,  pp.  652-3.) 

1890 — Report  of  Sanitary  District  of  Chicago,  L.  E.  Cooley,  Chief 
Engineer,  on  Lakes  to  Gulf  IVaterwav,”  pp.  3-4.  (Abst., 

p.  1186.) 

1890 — Report  of  Capt.  W.  L.  Marshall. 

(From  Ex.  Doc.  264,  H.  R.,  51st  Congress,  1st  Ses- 
sion, Abst.,  p.  653.) 

1900 —  Report  of  F.  S.  Engineers,  1900,  Part  V,  p]).  3857-59.  (Abst., 

p.  1125.) 

1901 —  Report  of  U.  S.  Engineers,  Part  IV,  pp.  3050-3060.  (Abst., 

pp.  1126-7.) 

1905 — Report  of  Ernst  Board  on  Fourteen  Foot  Water  lYay. 

(H.  R.  Doc.  263,  59th  Congress,  1st  Session,  Abst., 
p}).  660-662,  809,  1712.) 

1907 — Report  by  the  Internal  Improvement  Commission  of  Illi- 
nois. (Cooley  Ex.  1,  Abst.,  ]).  921.) 

1907 — IT.  S.  War  Department’s  Reply  (Oct.  28,  1907),  (to  enquiry 
by  Attorney  General  Stead)  that  the  Des  Plaines  is  con- 
sidered by  the  Department  a navigable  stream.  (Abst., 

pp.  181-2;) 

A boat  70  feet  long,  18  feet  wide  and  drawing  2 feet  of  water, 
carrying  60  tons  of  freight,  starting  from  Lake  ^Michigan,  would 
go  up  the  Chicago  River  through  the  Drainage  Canal  to  Dam 
No.  1 at  Joliet.  (Testimony  of  Cooley,  Trans.,  ]).  2466;  Abst., 
p.  832.) 

(Boats  of  this  size  and  tonnage  have  been  in  common  use  for 
many  years.  See  list  of  merchant  steamboats.  H.  R.  Doc.  264, 
51  Congress,  1st  Session,  pp.  119-128;  Abst.,  pp.  656-60.) 


42 


A boat  4 feet  deep  draws  wlien  loaded  a])ont  3 feet  of  water. 
(Surveyor  (Jen.  I liitehins,  Imlay,  ])p.  489-90;  A])st.,  ]).  938.) 

Tlie  situation  at  l^am  No.  1 is  discussed  elsewhere  in  this 
brief. 

Dam  No.  1 is  a State  dam  Imilt  in  aid  of  navigation  in  the  canal, 
which  coincides  with  the  river  here,  and  as  to  its  incidental  water 
power  privileges  is  under  an  invalid  terminable  lease,  which, 
if  not  abrogated  by  the  State,  expires  by  its  own  terms  July  17, 
1916.  ' . ! 

In  reaching  this  point  the  boat  would  have  passed  through  the 
Lockport  lock  of  the  Sanitary  District  channel,  by  which  it  would 
have  been  lowered  421  feet.  (Testimony  of  Cooley,  Trans.,  p.  2468; 
see  Abst.,  p.  832.) 

Below  Dam  No.  1 it  enters  upon  Lake  Joliet  and  would  en- 
counter no  obstruction  throughout  the  rest  of  the  Des  Plaines 
Biver.  (Testimony  of  Abbott,  Trans.,  p.  1099;  Abst.,  p.  454.)” 
(Testimony  of  Clement,  Trans.,  p.  827 ; Abst.,  p.  392.)  (Testimony 
of  Parrent,  Trans.,  p.  1090;  AbsC,  p.  452.) 

In  order  to  pass  the  12  existing  bridges  (See  U.  S.  Engineers’ 
Special  Keport  of  1905,  Ernst  Board  Doc.  No.  263,  p.  49)  for 
which  the  Sanitary  District  have  not  yet  exercised  the  power  of 
substituting  swing  bridges  (Ernst.  Pep.,  p.  49)  the  boat  must  needs 
be  of  the  barge  type  referred  to  in  Captain  Marshall’s  report. 

The  legislation  providing  for  swing  bridges  in  this  area  (Act 
of  ]\lay  13,  1897,  to  amend  Sanitary  District  Act)  will  presently 
make  such  improvement  thnt  boats  taller  than  those  of  the  barge 
type  may  freely  use  the  river. 

The  Des  Plaines  Elver  from  Dam  No.  1 to  the  mouth  is,  at  its 
broadest  point,  from  one  thousand  feet  to  a quarter  of  a mile  wide. 
(See  Lorimer’s  testimony,  Trans.,  p.  339;  Abst.,  p.  196;  AYoer- 
mann’s  testimony,  Trans.,  p.  4908;  Abst.,  p.  1453.) 

At  its  narrowest  point,  on  the  left  hand  channel  of  the  river  at 
Treat’s  Island,  it  is  128  feet  wide.  (See  testimony  of  Zarley, 
Trans.,  p.  2603;  Abst.,  p.  871.) 

This  boat  wmuld  find  from  3-1  feet  of  water  to  20  feet  of  water 
throughout  tlie  distance.  (See  testimony  of  Elanders,  Ti-ans.,  ]). 


43 


974;  Abst.,  }).  429;  lestiinoiiy  of  (^ooU'v;  (Joiisolidntcid  Ib'ofik^, 
Abst.,  |).  r)()2G.) 

It  would  find  a (uirreut  of  7.4  miles  ])er  liour  at  one  j)oiiit,  and  a 
eurrent  varying  from  an  imperceptible  current  to  one  about  3 
miles  an  hour  the  rest  of  the  way.  (See  House  Doc.  293,  Hngrs. 
Hep.  of  1905,  p.  41,  Abst.,  pp.  660-662.) 

‘Ht  was  dead  water  half  the  way.”  (Dep.  of  (dement,  Al)st., 
p.  395.) 

A boat  going  upstream  from  the  Illinois  and  entering  the  Des 
Plaines  would  encounter  the  same  conditions  reversed  in  order  of 
time. 

The  Des  Plaines  in  its  natural  condition  had  a depth  for  a boat 
of  this  capacity  for  3 months  in  the  spring  and  2 months  in  the 
fall,  or  about  150  days.  (See  testimony  of  Hicks,  Trans.,  p.  1006; 
Abst.,  p.  436;  testimony  of  Parrent,  Trans.*,  p.  1090;  Abst.,  p.  452.) 

For  abont  4 months,  the  three  winter  months  and  one  additional, 
weather  conditions  would  prevent  its  nse,  as  they  do  all  northern 
waters.  (See  testimony  of  many  witnesses,  e.  g.,  Cooley,  Abst., 

p.  818.) 

For  from  2 to  3 months  in  each  year  in  a state  of  nature  low 
water  conditions  would  prevent  the  use  of  a boat  of  this  capa- 
city. (See  testimony  of  AV.  AV.  Stevens,  Trans.,  ]).  886;  Abst.,  p. 
411;  testimony  of  Parrent,  Trans.,  p.  1096;  Al)st.,  ]).  452.) 

For  about  two  months  of  these  three  a boat  drawing  about  half 
this  amount  of  water  could  be  used.  (See  testimony  of  Parent, 
Abst.,  p.  453.) 

Boats  of  half  this  capacity  have  been  in  general  use  upon  north- 
ern and  western  streams  for  many  years.  (See  testimony  of 
A^an  Sant,  Abst.,  pp.  859-69.) 

3.  Depths  of  the  des  plaines: 

A summary  of  the  several  charts  of  soundings,  and  profiles  on 
the  river,  platted  from  such  soundings,  is  presented  in  the  argu- 
ment under  this  heading,  also  a description  of  the  testimony  of 
witnesses. 

Special  attention  is  called  to  the  following: 

The  consolidated  profile  of  the  river,  summarizing  several  dif- 


44 


1‘ereiit  surveys.  This  is  uiade  by  Engineer  Lyman  J].  Cooley,  and 
is  known  as  ‘‘Cooley’s  Exhibit  *>”  (Atlas,  }).  3945;  Abst.,  p.  1923). 

The  (k)oley  Exhibits  25,  23  and  27.  (Atlas  pp.  3969,  3970  and 
3971  ; Abst.,  pp.  1931,  1932.)  These  are  plats  of  this  reach  of  the 
river  by  the  United  States  Surveys  of  1883-1890. 

The  AVilson  Profile  of  1867.  (Abst.,  p.  1932.)  Cooley  Exhibit 
35  (Atlas,  3974;  Al)st.,  p.  1933). 

(’ooley  Exhibit  36 : The  'Macomb  Profile  of  1874  (Atlas  p.  3975). 
(Abst.,  p.  1933.) 

In  connection  'with  these  profiles  the  material  contained  in  the 
Government  Reports  is  tabulated;  and  the  profiles  and  tables  of 
depths  will  be  found  in  the  Argument. 

4.  The  aetificial  depletions  of  the  des  plaines  : 

Among  these  are  the  following: 

(1)  The  State  Pitch  (“Orr  Exhibit  5,”  Atlas,  p.  3925; 
Abst.,  p.  1918). 

(2)  The  Illinois  & Michigan  Canal  cut  off  the  natural  drain- 
age tributary  to  the  Des  Plaines. 

(3)  The  use  of  the  Des  Plaines  to  supply  two  feeders  of 
the  canal. 

(4)  The  Cook  County  Drainage  Ditch  of  1852  drained  Mud 
Lake  away  from  the  Des  Plaines. 

These  Ditches  of  the  Cook  County  Drainage  Commission  were 
authorized  by  the  Act  of  February  17,  1851,  entitled  “An  Act  to 
Drain  the  A¥et  Lands  About  Chicago”  (specifying  the  Mud  Lake 
region  as  “lands  lying  in  townships  number  38,  39  and  40  in 
Ranges  12,  13  and  14  East  of  the  3d  P.  M.”),  L.  1851,  p.  195;  and 
this  was  superseded  by  the  Act  of  June  23,  1852,  incoporating  the 
Commission  and  adding  township  37  to  the  list. 

L.  1852,  p.  240. 


(For  a description  of  their  work,  see  Governor  Bross’s  History  of  Chicago,  pp. 

49-50.) 

(5)  The  Ogden-Nickerson-AA"entworth  Ditch  further  drained 
Mud  Lake  water  and  diverted  the  main  stream  to  the  east 
and  out  into  the  Chicago  River. 

(6)  The  Ogden  Dam,  built  by  the  City  of  Chicago,  par- 
tially separating  the  river  from  the  Ogden  Ditch,  prevented 
the  Des  Plaines  River  from  running  out  into  the  Chicago 


Ikivor  ill  liifjli  i('(ilci',  Jiiid  pi  (‘vend'd  tin'  vv;d(‘rs  of  Mini  Lak(! 
and  the  surrounding-  swamps  IVoin  running  into  the*  l)(‘S 
Plaines  in  low  irolrr,  and  th(‘  latt(‘r  For  Hu'  fjrroli'.r  portion 
of  the  year.  For  (‘onsli'iK'tion  and  (d'lecd,  of  this  dam  s(‘(;  t(;s- 
limony  of  Benezette  Williams,  of  the  first  Drainages  Ikoard 
of  tlie  Sanitary  l)istri(*t  of  (diicago  (Abst.,  ]).  .‘>41);  testi- 
mony of  Lyman  E.  Cooley  (Abst.,  pp.  84()-9),  and  reports  of 
diieago  (dnmnissioner  of  Public  Works.  (Abst.,  p.  d42.) 

(7)  The  River  Diversion  by  the  Sanitary  District  of  Clii. 
cago  in  tlie  years  1892-1894,  de])leted  tlie  river. 

(8)  Tnliabitation,  denudation,  tiling,  ditching,  draining  and 
(‘ultivation  depleted  the  river.  (Ev.  of  L.  E.  Cooley,  Abst., 
pp.  824-8.30;  Dep.  of  Wiglitman,  Abst.,  p.  428;  Dep.  of  Hicks, 
Abst.,  p.  436;  Dep.  of  Belz,  Abst.,  p.  443;  Dep.  of  Paddock, 
Abst.,  pp.  469-70;  of  Clement,  Abst.,  p.  394.) 

Cooley  Ex.  37 ; Tr.,  pp.  2286,  3976a. 

5.  The  slopes  of  the  Des  Plaixes  : 

These  slopes,  as  surveyed  and  platted  by  United  States  engi- 
neers are  assembled  and  exhibited  in  the  consolidated  profile, 
^‘Cooley  Exhibit  3.”  They  are  not  prohibitive  of  navigation: 
much  greater  slopes  are  successfully  navigated. 

6.  Sinuosities  of  the  eiver  are  not  excessive  or  unusual  and 
ARE  not  such  as  PREVENT  NAVIGATION. 

(Comparison  of  Des  Plaines  with  the  Illinois,  the  Eox,  the  AVis- 
consin,  and  the  Snake  on  maps  in  Ap])endix. 

House  document  263,  kieport  of  1905,  p]).  41-42,  Abst.,  p ; 

Cooley  Exhibits  2,  3,  Abst.,  p ; Cooley  Exhibits  25,  26,  27, 

Appendix.) 

7.  The  former  dams  and  the  bridges  (crossing  the  river  do  not 

CHANGE  ITS  CHARACTER  OR  PREVENT  ITS  NAVKJATION. 

Clark  V.  Lake,  1 Scam.,  229. 

West  Chi.  St.  R.  Co.  y.  . People,  214  Ilk,  1. 

Report  of  Marshall,  1890,  Doc.  264. 

8.  The  relation  of  the  des  plaines  river  to  the  continental 
WATER  WAY.  Cooley  Ex.  37;  Trans.,  2286,  3976a. 

This  is  shown  by  ‘‘CkxMev  Exhibit  .‘>7,”  (Atlas,  ]).  3976A;  Abst., 
p.  1934),  which  was  excluded  by  the  Ck)urt.  This  was  eri’or. 


9.  The  testimony  of  neighbors  as  to  the  river. 


40 


10.  J^]x]M0RT  TESTJMONY  ON  NAVIGABILITY.  THE  EXPERT  TESTIMONY 
FOR  THE  STATE  AND  FOR  DEFENDANT  COMPARED. 

I'lie  effect  of  retainer  and  employment.  Per  Miller,  d.,  4 
Dillon,  448. 

4 Am.  Lawyer,  p.  201. 

Frazer  v.  Jemison,  42  Mich.,  206. 

Springer  v.  Yerhes,  22  Chi.  Legal  News,  p.  256. 

Morse’s  Famous  Trials,  The  Techborne  Claimant. 

11.  The  two  existing  dams  at  Marseilles  and  Joliet  are  sub- 
ject TO  REMOVAL  BY  THE  StATE  FOR  NAVIGATION  PURPOSES. 

Therefore  the  navigablity^  of  the  river  is  to  be  determined  in- 
dependent OF  their  presence. 

I.  As  to  the  Marseilles  Dam,  the  right  of  navigation  was  ex- 
pressly preserved  by  the  Act  of  March  9,  1867,  2 Pr.  L.,  810-11,  and 
that  of  June  19,  1869,  4 Pr.  L.  1869,  p.  498. 

II.  As  to  Dam  No.  1 at  Joliet,  it  was  begun  by  the  Canal  Com- 
missioners in  1840  and  finished  in  the  fall  of  1841  (5  Gilm.,  553) 
as  a part  of  the  navigable  canal. 

(See  Canal  History,  Canal  Eep.  1900,  p.  155.) 

A.  The  incidental  water-power  developed  by  it  was  made  the 
subject  of  conveyances,  as  follows : 

(1)  By  the  Canal  Trustees  to  Hawk  and  Preston,  July  17,  1855, 
to  commence  one  year  in  futuro,  viz.,  July  17,  1856,  and  continue 
twenty  years,  with  a conditional  privilege  of  renewal  for  twenty 
more  (to  July  17,  1896),  and  again  for  twenty  more  (to  July  17, 
1916). 

(2)  The  property  reverted  to  the  State  upon  the  extinction  of 
the  canal  debt  and  discharge  of  the  Trustees  in  1871. 

(3)  The  new  Canal  Commissioners,  August  10,  1876,  purported 
to  renew  the  old  lease  to  one  G.  W.  Hyde,  assignee,  for  twenty 
years  from  July  17,  1876. 

(4)  The  Canal  Commissioners  again  assumed  to  renew  it  to 
The  Economy  Light  & Power  Co.  (defendant  here),  as  assignee, 
October  3,  1896,  for  twenty  years  from  July  17,  1896. 


47 


1).  The  Slate  inainlains: 

(1)  That  tlie  lease  was  void  ab  initio.  The  Trustees  had  no 
power  to  make  a lease  to  l)egin  in  fnturo. 

Rutz  Y.  Kheu,  Ud  111.,  558,  at  557-8. 

2 Sugden  on  Powers  (3d  Am.  Ed.  from  7tli  London),  310, 
34G  Oil.  18,  Sec.  10,  8th  London  Ed.,  749,  and  eases  there 
cited. 

A fortiori  this  is  so  of  the  purported  renewals  to  begin 
in  futnro. — Id. 

(2)  There  was  no  assignment  to  Hyde. 

(3)  With  the  termination  of  the  trust  the  powers  of  the  Canal 
Trustees  ceased. 

(4)  The  Act  of  the  Canal  Commissioners  in  1876  in  granting  a 
purported  renewal  to  Hyde  was  in  reality  a new  lease  in  violation 
of  the  statute  of  1874. 

(R.  S.,  Ch.  19,  Sec.  8,  Cl.  6) — limiting  such  leases  to  ten 
years  and  requiring  letting  to  highest  bidder  after  ad- 
vertisement. 

(5)  Their  act  in  granting  a purported  renewal  to  the  defendant 
here  in  1896  was  in  violation  of  the  same  Act  of  1874,  as  amended 
June  19,  1891,  wliidi  also  limited  water-])ower  leases  to  ten  years, 
and  required  letting  to  highest  bidder  after  advertisement. 

(6)  Both  purported  ‘L'enewals”  were  really  new  leases  and 
were  subject  to  the  reserved  power  of  the  State  to  resume. 

R.  S.  1874,  Ch.  19,  Sec.  8,  Cl.  6. 

(7)  The  lease  could  not  he  renewed  after  it  had  expired. 

(8)  The  Trustees  could  not  bind  the  State  by  donating  rights 
to  enter  into  new  contracts  after  the  trust  had  expired. 

An  inchoate  right  to  contract  with  an  agency  of  the  State  in  the 
future  is  not  itself  a contract  conferring  a vested  right  under  the 
constitution. 

Galveston,  etc.,  Ry.  Co.  v.  Texas,  170  IT.  S.,  226. 

Bank  of  Commerce  v.  Tennessee,  163  U.  S.,  416. 

Pearsall  v.  Great  Northern  Ry.  Co.,  161  IT.  S.,  646. 

The  courts  have  repeatedly  held  that  the  Legislature  may  repeal 
laws  authorizing  the  donation  of  such  privileges,  although  invest- 


4S 

iiieiits  liave  l)een  made  thereunder,  tlie  contract  not  having  l)een 
a(‘tnally  (‘arried  into  effect. 

City  of  Chester  v.  N.  C.  d W.  R.  R.  Co.,  182  III.,  382. 
shiny  Ionian  Home  v.  Chicago,  157  Til.,  4-14. 

Aspimvall  v.  Daviess,  22  How.,  364. 

W adsivorth  v.  Supervisors,  102  U.  S.,  534. 

Norton  v.  Brownsville,  129  IT.  S.,  479. 

Wade  V.  Walnut,  105  U.  S.,  1. 

Concord  v.  Portsmouth  Savings  Bank,  92  U.  S.,  625. 

Falconer  v.  Buffalo  S J amestown  R.  R.  Co.,  69  N.  Y.,  491. 

Covington  & Lexington  R.  R.  Co.  v.  Kenton  County  Courts 
12  B.  Mon.,  144. 

The  Canal  Trustees  held  as  trustees  not  only  for  the  l)ond  hold- 
ers, but  also  for  the  State,  and  acted  in  the  exercise  of  a govern- 
mental power,  under  delegated  authority,  and  as  the  agency  of 
the  State.  They  had  no  implied  powers. 

Therefore  they  had  no  implied  power  to  grant  a right  to  obtain 
a contract  in  fiiiuro  after  the  coinpletion  of  the  trust. 

Walla  Walla  v.  Walla  Walla  Water  Co.,  172  IT.  S.,  1. 

Rogers  Park  Water  Co.  v.  Fergus,  178  111.,  571. 

Ibid.,  180  U.  S.,  624. 

People,  ex.  rel.,  v.  Suburban  R.  R.  Co.,  178  111.,  594,  606-7. 

Chicago  General  Ry.  Co.  v.  Chicago  City  Ry.  Co.,  62  111. 
App.,  502. 

Davis  & Farnum  Mfg.  Co.y.  Los  Angeles,  189  IT.  S.,  207. 

Bienville  IF.  S.  Co.  v.  Mobile,  186  U.  S.,  212. 

Wabash  R.  R.  Co.  v.  Defiance,  167  U.  S.,  88. 

Hunt  V.  Chicago  II.  S D.  Ry.  Co.,  121  111.,  646. 

This  rule  was  applied  by  Judges  Grosscup  and  Jenkins,  limiting 
the  grants  of  franchises  by  the  City  of  Chicago  to  traction  com- 
panies of  the  city  to  a period  of  twenty  years,  in  so  far  as  the 
streets  had  not  been  specifically  designated  and  work  done  there- 
under prior  to  the  re-incorporation  of  the  city  under  the  general 
incorporation  act  which  limited  such  grants  to  twenty  years,  in  the 
year  1875. 

Govin  V.  City  of  Chicago,  132  Fed.  Bep.  et  seq.,  848,  853. 


In  Wair  v'  CMca()o,  201  IJ.  S.,  400,  472)4,  llie  Snprnnin  (.V)urt, 
re<H)giiizod  tlio  (‘orrec-tiiess  of  tlie  decision  of  Judges  (Irosscuf)  and 
Jenkins,  in  so  far  as  they  applied  this  limitation  and  revers(id  the 
decision  below  because  it  did  not  carry  tliis  limitation  far  enough. 

At  pages  488-9  the  Supreme  Court  applied  the  same  limitation 
to  the  Lake  View  franchises. 


I'll. 

THE  POLICY  OF  THE  STATE  OF  ILLINOIS  IN  RESPECT  TO  THE  NAVIGABILITY 
OF  THE  DES  PLAINES  RIVER,  AS  EVINCED  BY  LEGISLATION, 

IS  TO  MAINTAIN  A PUBLIC  HIGHWAY. 

1839 — iVct  of  February  28,  declared  the  river  navigable.  (L.  ]839, 

• p.  208.) 

1839 — Act  of  February  26,  made  meander  lines  the  lionndary  of 
canal  lands.  (L.  1839,  }).  177 ; Canal  Comp.,  p.  59.) 

1845— Act  of  March  3 (L.  1845,  ]).  287),  authorized  Ste|)lien  Forbes 
to  build  a dam  above  the  point  marked  “Head  of  Naviga- 
tion.” 

L8G7 — Act  of  M^ircli  9 (P.  L.  1867,  Vol.  II,  ]>.  810).  An  Act  incorpo- 
rating the  Marseilles  Ijand  and  Water  Ibiwer  Coni])any,  re- 
serving the  right  to  take  ])Ossession  of  the  dam  for  ])ur- 
poses  of  navigation. 

1869— Act  of  March  27  (P.  L.  1869,  Vol.  IV,  )).  498),  amended  the 
foregoing  by  ])i'oviding  for  com})ensation. 

1861 — Joint  Kesolntion  (L.  1861,  i)p.  277-8)  commanded  the  Tiais- 
tees  of  the  canal  to  survey  the  Des  Plaines  and  Chicago 
Rivers  and  portage,  for  the  pnr])ose  of  impi*oving  the  navi- 
gation of  the  Illinois  “liy  o})ening  a channel  from  Lake 
Michigan  by  way  of  the  South  Branch  of  the  Chicago 
JLver  and  ]\lud  Lake  to  the  Des  Plaines  River,  etc.” 

1865 — February  16,  An  Act  for  the  com])letion  of  the  canal  on  the 
Deep  Cut  plan.  (L.  1865,  p.  83;  Canal  Comp.,  ]).  135.) 

1867 — ^February  28,  River  Improvement  Act,  authorized  the  Canal 
Commissioners  “to  make  changes  Lido})ting’  the  river  im- 
])rovement  instead  of  the  canal  between  CJiicago  and  La- 
Salle, as  may  be  deemed  expedient.”  (L.  1867,  }).  81.) 


1871 — ()(‘t()])er  20,  A(‘t  taking  oven*  tlie  Chicago  Deep  Cut,  made 
under  Aet  of  Fel)ruary  10,  1805.  (L.  1871,  p.  170;  Canal 

Conp).,  p.  149.) 

1879 — Joint  l^esolution  (1j.  1879,  p.  521-2)  proposing  the  cession  of 
tlie  canal  to  tlie  Federal  Government. 

1881 — Joint  Resolution  (L.  1881,  pp.  159,  101)  for  improving  the 
I'iver  and  canal,  finding  that  prior  to  the  Deep  Cut  of  1805- 
1871  ‘Ghe  water  necessary  for  all  purposes  of  navigating 
the  said  canal  and  i:>ropelling  of  machinery  was  obtained 
from  the  Des  Plaines  River  and  the  Calumet  Feeder,”  and 
that  ^Ghe  bed  of  the  Des  Plaines  River  will  average  a sup- 
p]y  of  water  sufficient  for  all  canal  and  power  purposes 
during  the  seasons  of  navigation;”  and  providing  for 
^ hsluice-ways  of  sufficient  capacity  with  the  proper  guard 
gates  to  he  opened  from  the  Des  Plaines  to  the  canal.” 

1881 —  Joint  Resolution,  concerning  the  Kankakee  River  Improve- 

ment Company  (L.  1881,  p.  163),  commanding  proceedings 
by  attorney  general. 

The  charter  of  that  company  was  abrogated  pursuant 
thereto. 

People  V.  Kankakee  Piver  ImproveaKnt  Co.,  103  111., 
491. 

‘GA  river  does  not  become  a canal  from  having  its  navi- 
gation improved  by  artificial  means.” 

103  111.,  511. 

1882 —  April  28,  Act  ceding  the  I.  & M.  Canal  to  the  United  States, 

subject  to  the  referendum.  (L.  1882,  p.  12.) 

1883 —  Joint  Resolution  directing  the  Canal  Commissioners  to  take 

half  the  water-power  from  the  Adam  Dam  of  Joliet.  (L. 
1883,  p.  184.) 

1887 — Act  of  June  6,  organizing  Chicago  into  a drainage  district; 

precursor  of  Act  of  1889,  organizing  the  Sanitary  District 
of  Chicago  (L.  1887,  p.  126),  provided  for  cut-offs  and 
ditches  to  divert  the  flood  waters  of  the  Des  Plaines  into 
Lake  Michigan. 

1889 — May  28,  the  Legislature  passed  a Navigation  Resolution,  and 


51 


the  Act  c'.reate  sanitary  distric'ts  and  r(‘iriov(;  ol)stnK'- 
tions  from  the  Des  Plaines  and  Illinois  Pivan-s.”  Tlnisc; 
were  passed  on  tlie  same  day  and  are  (‘onstriKal  as  one  (m- 
actment. 

(Joint  Itesolution  L.  1889,  p]).  o75-7().) 

After  the  preamble,  giving  valuable  summary  of  pre- 
vious histoi*}”,  the  Legislature  resolved  that: 

^‘Whereas,  The  present  addition  to  the  low  water 
volume  of  the  Illinois  River  through  the  Summit  level 
of  the  Illinois  and  Michigan  Canal  from  Lake  Michi- 
gan more  than  doubles  the  volume  of  water  used  in  the 
estimate  of  1868 ; * * * 

And  Whereas,  It  is  contemplated  to  increase  the 
volume  from  Lake  Michigan  300,000  cubic  feet  per 
minute  in  a few  years,  and  ultimately  to  add  600,000 
cubic  feet  or  more,  thus  enabling  a large  depth  for 
navigation  to  be  obtained;  * * * 

And  Whereas,  Works  now  projected  by  the  City  of 
Chicago  will  form  part  of  a water-way  of  large  pro- 
])ortions,  from  Lake  Michigan  via  the  Des  Plaines  and 
Illinois  Rivers  to  the  Mississippi  River,  * * * 

Therefore,  Be  It  Resolved — 

L Tliat  it  is  the  ])olicy  of  the  State  of  Illinois  to 
])rocure  the  construction  of  a water-way  of  the  great- 
est practicable  depth  and  nsefnlness  for  navigation, 
from  Lake  Michigan  via  the  Des  Plaines  and  Illinois 
Rivers  to  the  Mississippi  River.” 

'Concurrent  with  this,  the  Sanitary  District  Act  was 
passed  on  the  same  day. 

(L.  1889,  pp.  133-137.) 

Special  attention  is  called  to  Sections  7,  20,  23,  24  and 
27,  providing  for  a navigable  channel  connecting  the  Chi- 
cago River  with  the  Des  Idaines  River,  which  has  been 
done. 

1895 — August  2,  Joint  Resolution  urging  harbor  improvement  on 
lake  shore  of  Lake  Michigan. 

(L.  of  1895,  Extra  Session,  p.  II.) 

1895 — June  10,  Amendment  to  Sanitary  District  Act,  re(piiring  a 
flow  of  20,000  cubic  feet  of  water  for  each  100,000  people. 

1897 — Act  of  May  13,  to  amend  Sanitary  District  Act,  so  as  to 
re([uire  movable  bridges. 


11)01 — Act  of  May  13,  enabling  the  District  improve  certain 
}Kivl()(d)le.  streiuiis,  within,  or  auxiliary  to  sucli  (listri(‘ts, 
and  to  build  ])ridges  across  such  streams.” 

The  i)lural  noun  “certain  navigable  streams  within  the 
‘ District”  can  apply  to  two  streams  only,  viz.,  the  Des 
Plaines  and  the  Chicago  Divers.  The  use  of  the  plural 
noun  recpiires  application  to  both  of  the  streams,  as  they 
are  the  only  two  in  the  District. 

1903 — Act  of  May  14,  An  Act  in  relation  to  the  Sanitary  District 
of  Chicago  (recognizing  the  District  of  Chicago  by  name), 
enlarging  the  corp>orate  limits  of  the  District  and  pro- 
viding for  navigation  in  its  channels,  and  for  closing  up 
portions  of  the  I.  & M.  Canal,  after  providing  substitute 
channel. 

(L.  of  1903,  pp.  115-117.) 

1907 — Act  amendatory  of  the  statutes  of  the  Sanitary  District  of 
• Chicago  of  Febrnar}^  27  and  May  25,  renewing  the  pro- 
vision for  movable  bridges  (Section  19),  “regulating  the 
reliability  of  the  Sanitary  District  for  damages  by  reason 
of  the  use  of  any  channel  outlet  or  other  improvement.” 

(L.  of  1907,  pp.  284,  287.) 

1907 — October  16,  The  Deep  Water  Way  Eesolution,  submitting  a 
constitutional  amendment,  which  was  adopted  at  the  elec- 
tion of  November  3,  1908. 

(L.  of  1907-8,  Adjourned  Session,  pp.  102-3.) 

1907 — October  15  and  16 — Eesolution  creating  the  Deep  AVater 
Way  Committee. 

(L.  of  1907-8,  pp.  102-4.) 

1907 — November  27,  Eesolution  demanding  the  removal  of  the  de- 
fendant’s dam  and  the  cancellation  of  the  Canal  Commis- 
sioners’ contracts  therefor. 

(L.  of  1907-8,  Adjourned  Session,  pp.  101-2.) 

1907 — December  6,  “An  Act  recogmizing  the  Des  Plaines  and  Illi- 
nois Eivers  as  navigable  streams,  and  to  prevent  obstruc- 
tions being  placed  therein  and  remove  obstructions  there- 
in now  existing. 

(L.  of  1897-8,  Adjourned  Session,  pp.  32-33.) 


TV. 


THE  LLINOTS  AND  MICIIKJAN  CANAE  AS  A FACTOR  TOUCiriNG  THE  NAVI- 
GATION OF  TliE  DES  PLAINPIS  RIVER. 

The  relation  of  the  two  streams  to  each  other  and  tlie  legislation 
thereon,  and  data  from  the  Government  Reports  thereon,  are  as- 
sembled lierennder  in  tlie  argument. 

Paralleling  the  ITes  Plaines  by  means  of  the  canal  did  not  de- 
stroy the  navigability  of  the  Des  Plaines,  although  it  depleted  its 
water  supply. 

V. 

SUMMARY  OF  CANAU  HISTORY. 

Canal  Commissioners’  Report  of  1900  (Abst.,  p.  1855). 

7 U.  S.  Statutes  at  Large,  pp.  146-147. 

Report  of  Illinois  Internal  Improvement  Commission,  1907 
(Abst.,  p.  921). 

Early  ideas  as  to  route  and  length  of  Canal. 

Schoolcraft’s  ‘‘Travels  in  the  Mississi})])i  Valley.”  (Abst.,  p. 
1058.) 

Location  and  route  of  canal. 


VI. 

DEPTHS,  SLOPES  AND  PHYSICAL  CONDITIONS  OF  OTHER  STREAMS  AS  STAND- 
ARDS OF  COMPARISON. 

Mississippi  River — Rock  Island  Rapids. 

Testimony  of  W.  R.  Tibbals  (pilot  and  Government  inspector). 
(Abst.,  p.  684.) 

Testimony  of  Samuel  R.  Van  Sant  (pilot,  boat  builder,  president 
of  transportation  company.  Governor  of  Minnesota).  (Abst.,  ])p. 
856,  861,  865.) 

United  States  Survey  of,  by  Lieutenant  Robert  E.  Lee  (IT.  S. 
Engineer,  1887).  U.  S.  Eng.  Rep.,  1886,  Vol.  Ill,  pp.  1486-7. 
(Abst.,  pp.  1615-1617.) 


Hock  IsUnu/  Hojjic/s. 


United  States  Siu*vev  of,  l)y  Lieutenant  (i.  1\.  \Vari*en  (U.  S. 
Lngineer,  afterwards  (tenei'a!  Wari-en  of  tlie  Army  of  tlie  Po- 
toina(').  (U.  S.  Lngr.  llei).,  188(5,  Vol.  Ill,  ])p.  14d8-9.  (Abst.,  p. 

170:1.) 

Lock  Island  Rapids,  Survey  of,  by  (kiptain  P.  U.  Ilains,  18(50.  U. 
S.  Lng-.  Re]).,  188(5,  Vol.  Ill,  ])p.  Iddldk  (Al)st.,  p.  1705.) 

Rock  Island  Rapids,  Survey  of,  by  Major  A.  A.  MeKenzie  (now 
Chief  of  Lngineei-s.)  (11).,  p.  1401.)  (Abst.,  ]).  1017.) 

SUMMARY  OF  THE  PHYSICAL  CONDITIONS  OF  THE  ROCK  ISLu4ND  RAPIDS 
IN  THE  MISSISSIPPI  RIVER. 

The  net  result  of  this  comparison  is,  that  the  Mississippi,  though 
half  a mile  wide  at  this  point,  had  a channel  averaging  about  200 
feet  wide,  in  the  lower  part  never  exceeding  180  feet  (III  Eng. 
Rep.,  1880,  p.  1450),  and  ^Uit  the  lower  end  is  abruptly  narrowed 
with  an  increase  of  surface  velocity’’  (Ih.),  ‘‘probably  140  feet — 
down  in  low  water  you  couldn’t  get  that  through — not  over  50  feet” 
(Vhistler,  Abst.,  p.  1155)  ; “the  largest  is  not  more  than  from  00 
to  70  feet  wide  (Ib.,  p.  1401)  ; that  this  channel  extended  through 
these  rapids  for  a distance  of  14  miles  and  was  crossed  by  numer- 
ous reefs  which  “at  some  i^oints  extended  entirely  across  the 
channel,  and  projecting  at  others  from  opposite  sides  formed  a 
winding,  difficult  and  dangerous  passage,”  with  “short  turns  and 
narrow  passes  between  the  reefs”  (Report  of  Robt.  E.  Lee,  Abst., 
p.  1010),  “leaving  a narrow,  tortuous  channel  between  them  and  in 
some  instances  extending  like  a dam  or  rocky  bar  entirely  across 
the  river”  (Report  or  C’apt.  P.  C.  Ilains,  Abst.,  1705);  that 
there  were  seven  principal  chains  of  reefs  in  this  14  miles  (Report 
of  Capt.  P.  C.  Ilains,  Abst.,  p.  1705),  “leaving  only  a lyn'row  and 
crooked  water  Avay”  with  “strong  cross-currents”  (Report  of 
Caj)t.  C.  P.  Hains,  Abst.,  p.  1700)  ; that  the  channel  was  studded 
with  islands  which  at  the  central  portion  of  the  “St.  Louis  Cabin 
Passage”  “form  three  passages,  of  which  at  low  water  the  largest 
is  not  more  than  00  to  70  feet  wide”  (III  Eng.  Rep.,  1880,  p.  1401) ; 
that  the  bed  through  and  over  which  this  cliaimel  ran  consisted 


of  “liard  surface  of  liuiesioiie  rock”  (K^'poi-i  of  (-apt.  Ik  (k  I la, ins, 
iVbst.,  ]).  1705). 

'^riiere  Avere  l)oul(lers  in  liu'  stream;  but  iii  some  cas(‘s,  as  ut 
(k-nupbell’s  chain,  these  Iari>'e  boulders  projecting-  u})ove  the  sur- 
face of  the  water  “did  not  present  serious  ol)structioiis.”  but 
“ratlier  served  as  guide  marks  for  pilots”  (Re])ort  of  (kii)t.  Ik  (k 
Haiiis,  1880,  Abst.,  p.  1705). 

That  in  this  distance  of  “about  14  miles”  the  river  fell  21.40 
feet,  ^^or  an  average  fall  of  1.53  feet  per  mile;”  that  the  fall  was 
concentrated  at  the  reefs,  between  which  were  pools  (Report  of 
Gen.  G.  K.  Warren,  Abst.,  p.  1704) ; that  in  the  ordinary  depth  of 
water  this  channel  was  available  for  boats  drawing  12  inches  to  34 
feet  (Tibbals,  Abst.,  p.  035)  ; that  the  low  water  was  impassable 
for  boats  drawing  2 feet;  that  “when  the  river  was  open  for  navi- 
gation (200  days,  8 2-3  months)  about  one-third  of  the  whole  time 
(87  days,  i.  e.,  3 months)  it  is  rendered  dangerous  by  the  shoalness 
of  the  water  on  the  rapids,  and  sometimes  impassable  for  boats 
drawing  more  than  2 feet  (Rep.  of  Capt.  P.  C.  Hains,  Abst.,  j). 
1707)  ; that  every  year  of  low  water  several  boats  were  sunk  and 
others  seriously  injured  in  attempting  the  passage;  that  light  draft 
boats,  like  the  “Phil  Scheckel,”  drawing  15  inches,  the  ‘‘Black 
Hawk,”  drawing  10  inches,  the  “Silas  Wright,”  drawing  12  to  10 
inches  and  the  “Enterprise,”  drawing  10  inclies,  were  relied  on  for 
navigation  during  low  Avatei-;  and  in  1804  even  those  boats 
“couldn’t  run  at  all”  (Governor  Van  Sant,  Abst.,  p.  859)  ; that  14 
inches  was  the  lowest  Avater  they  got  through  on,  and  profitable 
commercial  navigation  was  in  fact  carried  on  over  14  inches  of 
Avater  (Tibl)als,  Abst.,  pp.  035-030)  ; that  the  current  through  this 
reach  varied  from  3 miles  an  hour  in  the  stiller  pools  to  0,  9,  10  and 
11  miles  an  hour  (Mason,  Abst.,  ])p.  1219-1220);  that  in  getting 
through  tliese  swifter  reaches  it  was  customary  to  “double-tri])”  it, 
i.  e.,  take  ii])  half  the  load  and  then  go  back  for  the  other  half;  to 
“wai'])”  01*  “cordelle”  the  boat  up  by  ])utting  out  ahead  an  anchor 
Avith  a cable  and  Aviiid  u})  the  cable  by  a capstan  operated  by  steam 
(Tibbals,  Abst.,  }).  030)  ; that  afterwards  a s])ecial  set  of  l)oats  and 
])ilots  Avei'e  l<e])t  at  tlie  rapids  to  take  boats  tlirough  (McGaffrey, 
Abst.,  ]).  1157),  (Ranibo,  Abst.,  p.  1101);  that  the  Ibiited  States 
GoAnu'nmeut  has  expcmded  millions  of  dollars  improving  tlu^  navi- 


50 


gntioii  of  this  I’eiU'li  of  rapids  and  finally  a lo('k  was  put  in  to  take 
up  the  tall,  and  wing’  dams  to  reduce  the  current.  i 

In  1889  the  oHicial  list  of  steamboats  plying  the  Mississi[)pL  and 
tributaries  ])uhlished  in  ('a})tain  Marshall’s  report  (Ex.  l)o('.  204,  p. 
119)  gave  seven  boats  having  a depth  of  only  2 feet  and  tonnage 
ranging  from  52  1-4  to  119  tons  and  50  other  floats  having  less  than 
5 feet  deiith  and  tonnage  ranging  from  55  tons  to  180  tons.  (Ex. 
Doc.  204,  i)]).  119-128).  (Alist.,  p.  050.) 

These  14  miles  of  the  Mississipjh  reproduce  in  manifold  meas- 
ure all  of  the  difficulties  presented  by  the  10  miles  of  the  Des 
Plaines. 

Win.  ll.  Tibbals: 

1 have  steamboated  on  the  Mississippi  itself  on  14  inches  of 
water.  Several  boats  used  to  run  up  the  Iowa  and  bring  out 
freight.  They  drew  from  12  inches  to  18  or  20.  (Abst.,  p.  636.) 

L.  E.  Cooley: 

Between  Cairo  and  Memphis  'in  the  Plum  Point  reach  of  the 
Mississippi  we  used  a small  tow  boat  and  had  currents  of  5 to  6 
miles  an  hour  and  at  Fort  Pillow  Eddy  we  sometimes  struck  cur- 
rents of  12  miles  an  hour  which  we  used  to  run.  (Abst.,  p.  798.) 

The  witnesses  for  the  defense,  Mb  H.  Whistler  (Abst.,  pp.  1154- 
1155),  John  McCaffrey  (Abst.,  p.  1158),  Rambo  (Abst.,  p.  1160), 
McCitllough  (Abst.,  1177),  Boyle  (Abst.,  p.  1180),  Mason  (Abst.,  p. 
1217),  while  testifying  as  experts  for  the  defense  that  in  their  opin- 
ion the  Des  Plaines  was  not  profitably  navigable,  verified  all  these 
physical  conditions  of  the  Mississippi  at  Rock  Island  Rapids  and 
elsewhere,  through  which  they  had  navigated  and  which  is  of  known 
navigability. 

The  Des  Plaines  River  in  the  16  miles  from  Joliet  to  the  Kan- 
kakee presents  no  more  serious  difficulties,  not  nearly  as  serious 
difficulties,  as  those  presented  by  the  Rock  Island  Rapids  in  the 
Mississippi. 


The  Fox  River. 


.)( 


U.  S.  Kiig’.  1 1-7  (^11  Hiv(M*,  ))f).  201-297. 

(Al)st.,  p.  1024.) 

^Farquette’s  ma])  of  Fox  and  Wisconsin  Fivers  (Atlas,  pp. 
3994,  5)  (faesiinile  of  autograph  map  at  St.  Mary’s  College,  Mon- 
treal). 


Gen.  AVarren’s  map  and  profile  of  Fox  Eiver  (Atlas,  p.  3996)., 
This  gives  the  map  of  the  route  pursued  by  Father  Marquette, 
by  the  French  voyagers,  by  the  batteaux  and  Durham  boat  navi- 
gation prior  to  the  improvement  of  the  Fox.  It  gives  a profile 
of  the  Fox  Fiver,  drawn  by  General  AVarren,  exhibiting  a fall  of 
170  feet  from  Neenah  at  the  head  of  Winnebago  rapids,  down  to 
Green  Bay,  in  a distance  of  374  miles.  (U.  S.  Eng.  Fep.,  1876, 
Pt.  II,  p.  239.)  (Abst.,  p.  1946.) 

Examination  of  Fox  and  4Aisconsin  Fivers  by  Major  S.  H.  Long 
(U.  S.  Topographical  Engineer)  in  1817  and  1823.  (Abst.,  p. 
1625.) 


Examination  of  Fox  and  AVisconsin  Rivers  l)y  Captain  Henry 
Whiting  in  1819  (U.  S.  Eng.  He]).  1876,  Pt.  11,  pj).  205-6).  (Abst., 


p.  1624.) 

‘‘From  the  ra])ids  at  the  mills  to  the  Grand  Chutes  the  cur- 
rent is  generally  so  rapid  as  to  render  a tow-line  and  setting- 
poles  necessary  and  the  boats  are  for  the  most  part  moved 
u])  in  that  way.  In  this  space  were  passed,  first  the  Little 
Kakalin  Fa])ids,  one-(piarter  of  a mile  in  length,  easily  sur- 
mounted with  setting  ])oles  and  oars;  second,  the  Great  Ka- 
kalin Fapids,  one  mile  in  length,  very  broken  and  violent, 
where  the  boats  are  unloaded,  and  the  baggage  transported 
1,000  yards  by  land;  third,  La  Petite  Chute,  a ledge  stretch- 
ing aci*oss  the  river,  making  a descent  of  about  12  inches ; 
fourth.  La  Grosse  Foche,  which  makes  a ]>eri)endicular  fall 
of  about  two  feet.  Both  of  these  two  last  mentioned  are 
surmounted  with  loaded  boats. 

“At  La  Grande  Chute  there  is  a perpendicular  fall  of  about 
four  feet  all  across  the  river,  and  the  boats  have  to  unload 
and  the  baggage  is  transported  500  yards.  Above  the  Grande 
Chute  and  below  Lake  Winnebago  there  are  two  or  three  in- 
considerable rapids  which  are  surmounted  without  much  dif- 
ficulty or  delay. 

“The  Fox  Fiver  thence  to  the  portage  has  always  a strong 


cun'ent  and  is  often  entirely  overgrown  witli  gi'ass  and  wild 
rice,  l)nt  prc'sents  no  otliei*  ini])edinients.  (lie)),  of  Maj.  Long, 
U.  S.  Kng.  1S7(),  Pt.  II,  ]).  2()().)  (Al)st.,  }).  1()25.) 


Wisconsin  River. 

‘‘The  (Wisconsin)  river  is  full  of  islands,  formed  b}"  the 
sand  bars,  which  are  constantly  increasing  in  number.  The  gen- 
eral depth  of  the  river  is,  at  the  ordinary  height  of  the  water, 
4 to  5 feet,  but  the  sand  bars  often  extend  entirely  across  the 
river,  and  have  not  more  than  8 or  10  inches  of  water;  the 
sands,  however,  are  quick,  and  oppose  but  little  resistence.” 
(Ibid.,  ])p.  2()()-7.)  (Abst.,  p.  Kidl.) 

Survey  of  Fox  Iviver  by  Captain  Cram,  1848: 

“Captain  Cram,  in  his  measurements  of  the  fall  on  the 
rai)ids  of  the  Lower  Fox  necessary  to  be  overcome  by  dams 
and  locks,  n'os  considerably  under  the  marl\  and  he  does  not 
enumerate  among  the  list  of  rapids  the  Cedar  Kapid  just 
above  Little  Chute,  or  else  includes  them  both  in  one.  For 
(‘onvenience  of  reference  in  the  report  of  operations  follow- 
ing, 1 will  give  now  a correct  list  of  the  several  rapids,  with 
their  distance  apart,  and  the  fall  at  each  as  it  was  ascertained 
at  the  time  of  the  examination  made  by  Major  Suter  in  1866. 


“List  of  rapids  on  Loiver  Fox  River ^ with  amount  of  fall 
and  distances  apart  between  liead  of  each. 


Distance 

Fall. 

Apart. 

Name. 

Feet. 

.Miles. 

Depere  

. 8 

0 

Little  Kaukana  (or  Kakalin)  

, 8 

6 

Papids  Croche  

8 

6 

Grand  Kaukana  

. 50 

44 

Little  Chute ' 

. '38 

01 

Cedar  Eapid  

. 10 

of 

Grand  Chute 

. 38 

4 

IVinnebago  Kapid  

. 10 

Green  Bay  to  Lake  AVinnebago 

(Ibid.,  p.  212.)  (Abst.,  p.  1626.) 

...  170 

28” 

A series  of  elaborate  works  for  improving  the  navigation  over 
this  stream  were  conducted,  first  by  i^rivate  enterprise,  then  l)y 
the  State  of  IVisconsin,  and  then  l)y  the  National  Government. 
These  are  described  in  U.  S.  Eng.  Eep.,  1876,  Pt.  IT,  pp.  213-297. 
(Abst.,  p.  1683.) 


Acting-  State  ('Oininissioner  William  Ivielnu-dson  i-(‘})ort(Ml  Jan- 
uary ],  1853: 

‘M  have  had  seven  dams  erected  and  two  are  now  in  course 
of  erection.”  (lb.,  }).  317.) 

General  W^arren  reports  to  the  Federal  Governnient  the  erection 
of  several  additional  dams  and  locks  in  1855-6,  and  of  proposed  ex- 
l^enditnres  in  1867  of  $118,400.00  to  give  a 4-foot  channel  and  $403,- 
370.00  to  give  a 6-foot^channel.  (lb.,  p.  239.)  (Ahst.,  p.  1633.) 

The  Fox  Elver  in  its  natural  condition  was  a navigable  stream. 

The  Montello,  11  W'alh,  411;  s.  c.  on  second  appenl,  20 
Wall.,  430. 

The  court  here  narrate  something  of  the  difficulties  in  navigat- 
ing the  Fox  Eiver,  its  portages,  its  rapids  and  cascades,  its  use 
by  Joliet  and  Marquette,  its  use  m the  fur  trade,  its  protection  by 
the  Ordinance  of  1787,  and  hold  that  in  spite  of  all  its  difficulties, 
which  far  surpass  those  of  the  Des  Plaines,  the  Fox  River  was  in 
a state  of  nature  a navigable  stream. 


The  Ohio  liwer  and  the  Rapids  of  the  Ohio. 

(1766-1778,  1797)  Description  of  the  rapids  of  the  Ohio  River 
by  U.  S.  Surveyor  General  Thomas  Hutchins: 

^‘Fall  estimated  to  he  fifteen  feet  in  one  mile.  Three-fourths  of 
the  bed  of  the  river  * * * filled  with  a //u7  limestone  rock,  so 

that  in  a dry  season  there  is  seldom  more  than  six  or  eight  inches 
of  irater.’’ 

‘‘Large  broken  rocks  a few  inches  under  water.” 

“Several  boats  passed  it  in  the  dryest  season  of  the  year  un- 
loading one-third  of  their  freight.  * * *” 

Imlay’s  Topographical  Description  of  the  AVestern  Ten-i- 
tory  of  North  America,  pp.  489-90.  (Ahst.,  p.  727.) 

General  Hutchins  (piotes  Oolonel  Gordon  as  saying: 

“They  ])assed  on  the  north  side  where  the  carrying-])lace  is  three- 
(piarters  of  a mile  long.  On  the  southeast  side  it  is  about  half  that 
distance,  and  is  reckoned  the  safest  ])assage  for  those  who  ai*e  un- 
ac(]uainted  with  it;  hnt  it  is  the  most  tedious,  as,  during  part  of 


GO 


ili(‘  siiininer  and  Tall  the  hattcnuix-nien  drag  their  boats  over  the  flat 
rock.  The  fall  is  about  half  a mile  rapid  water,  which,  however,  is 
passable  t)y  wading  and  dragging  tlie  boat  against  the  stream, 
when  lowest.  * * 

Evidence  of  Cooley: 

The  Pittsburgh  coal  fleet  has  been  locked  up  for  as  many  as  five 
months  waiting  for  a rise.  (Abst.,  p.  799.) 

The  Ohio  Piver  and  its  tributaries,  by  the  census  of  1890,  carried 
traffic  amounting  in  ton-miles  to  5 per  cent  of  the  total  railroad 
traffic  of  the  United  States.  (Uv.  of  Cooley.)  (Abst.,  p.  800.) 

^ AVt  low  stages  all  of  the  Ohio  Biver  boats  and  a large  part  of  the 
others  are  withdrawn  and  replaced  with  lighter  draft-boats.”  (Ex. 
Doc.  2G4,  51st  Congress,  1st  Session.)  (Abst.,  p.  800.) 

Beport  of  U.  S.  Engineers,  1882,  Vol.  II,  pages  1881-3,  by  Major 
Godfrey  Weitzel,  describes  the  rapids  as  having  a fall  of  26  feet 
in  2 2-3  miles,  in  low  water,  and  about  18  inches  fall  in  the  highest 

I 

stages  of  w^ater.  (That  is,  the  flood  water  drowned  out  all  but  18 
inches  of  the  fall.)  At  extreme  low  stages  about  one-half  of  its 
total  fall,  that  is,  i3  feet,  occurred  in  the  first  1,253  yards.”  (Abst., 

p.  1620.) 

“The  length  of  this  channel  (middle  chute),  is  about  3,800  yards, 
or  21  miles  long,  and  about  22  feet,  or  almost  the  entire  fall,  is  in 
tlie  last  500  yards.”  (Abst.,  p.  1620.) 

In  low  water,  the  boats  on  the  Ohio  Biver  are  compelled  to  run 
upon  a foot  of  water.  They  do  not  have  more.  The  big  boats  lie 
up  and  the  little  steamboats  come  down  from  the  smaller  streams 
to  navigate  the  Ohio.  They  will  draw  5 or  6 inches  and  carry  8 or 
10  tons. 

Since  the  improvement  of  the  Ohio,  it  does  not  get  that  low.  (Evi- 
dence of  Capt.  Wm.  H.  Bing.)  (Abst.,  pp.  663-664.) 

In  the  Kentucky  Chute,  “almost  the  entire  falls  is  in  the  last  185 
yards.”  (Abst.,  p.  1620.) 

“The  observations  which  were  made  and  recorded,  established 
ihe  fact  that  on  an  average  the  falls  were  not  navigable  ten  and  a 
half  months  per  annum.”  (Abst.,  1620.) 


r,] 


Proposals  for  tlio  Ohio  River  h(‘^>an  with  Surv(‘yor 

Ilntchins  in  1778.  (See  liis  map.) 

Oaiial  eom])anies  were  eliartered  !)y  Kent  in  1825  and  the  tii'st 
eanal  opened  in  1850.  Cost  over  81,000,000.  Government  surveys 
were  made  in  1845,  1845  and  1855,  under  government  eanal  i)ro- 
posed  in  1859-60.  Further  government  survey  in  1867.  Fxtensive 
government  improvements  made  in  1881-1882. 

Navigation  of  the  Ohio  River  described  by  Capt.  Bing:  l)e])th 
of  channel  in  low  water,  12  indies;  high  water,  71  feet.  (A])st.,  p. 
665.) 

Ohio  Tributaries: — Green  River,  200  miles  long,  120  feet  wide,  6 
locks  and  dams,  total  lift,  85  feet.  Navigable  with  locks  and  dams 
2 to  5 months  in  the  year.  (Evidence  of  Bewley.)  (Abst.,  pp. 
1015-1019.) 

Barren  River,  100  feet  wide.  Dam  15  feet  high.  Gives  depth  4-1 
feet.  Have  to  spar  over  said  bars.  (Abst.,  p.  1018.) 


The  Kentucky  River. 

The  Kentucky  River,  navigated  with  11  locks  and  dams,  210 
miles,  was  navigaihe  without  locks  and  dams  about  six  months  in 
the  year.  Low  water  depth,  18  inches.  It  is  no  risk  to  go  over  a 
drop  of  a foot  in  400.  (15  feet  to  the  mile.)  (Evidence  of  Pryor, 

witness  for  the  defense.)  (Trans.,  ]).  5591.)  (Abst.,  i)p.  1026- 
1027.) 

U.  S.  Eng.  Re^).  1887,  Vol.  Ilf,  pages  1871-1894,  show  current  15.5 
miles  an  liour  in  the  Kentucky  at  the  Beattyville  dam,  and  a mul- 
titude of  adverse  witnesses  declare  the  Kentucky  to  he  naviga])le 
only  6 months  in  the  year. 


The  Kanawha  River. 

Before  improvement  by  the  United  States,  the  low  water  dei)th 
went  below  15  inches  every  year.  Have  seen  it  10  and  12  inches, 
and  from  that  up  to  5 feet  low  water,  6 feet  high  water.  We  navi- 
gated 5 months  in  the  year.  Carried  light  freight  on  12  inches ; 


('tiri'ied  100  tons  on  0 foot.  It  liad  a great  many  elmtes  with  cur- 
rent of  8 to  10  miles  an  liour  tliat  we  navigated  ])y  warping  and  cor- 
delling  with  boat  lialf  loaded.  (Evidence  of  Bing.)  (Abst.,  p. 
Olid.) 


The  Cumberland  River. 

The  Harbor  Shoals  have  a fall  of  over  8 feet  in  a mile.  (Evi- 
dence of  HcCnllougli,  ex})ert  for  defense.)  (Abst.,  p.  1177.) 

U.  S.  Eng.  Kep.,  Part  V,  App.  W.  W.,  p.  3215 : Plan  for  7 locks 
and  dams  in  Cumberland  at  a cost  of  $2,000,000. 

U.  S.  Eng.  Hep.  1887,  Vol.  Ill,  pp.  1758-1779:  Heports  of  elab- 
orate improvements  on  the  Cumberland;  also  of  the  Ohio,  Alleg- 
heny, Kanawha,  Big  Sandy,  Wabash  and  Kentucky  Rivers  (pp. 
1781-1891). 


The  Tennessee  Riv'er. 

U.  S.  Eng.  Rep.  for  1872,  pp.  195,  197,  512,  511,  giving  list  of 
five  shoals  with  a fall  of  131.2  feet  in  38.5  miles  (nearly  3.5  feet  to 
the  mile),  and  showing  at  Big  Muscle  Shoals  a fall  of  82.1  feet  in 
11.1  miles,  and  at  Little  Muscle  Shoals  a fall  of  22  feet  in  5.35 
miles. 

(The  fall  in  the  Des  Plaines  was  39.5  feet  in  16  miles,  or  nearly 
2.5  feet  to  the  mile.) 

(Low  water  depth  of  the  Tennessee  12  to  20  inches  and  in  the 
Alabama  Division  10  to  20  inches.) 

Testimony  concerning  the  Tennessee  was  given  by  Mr.  Cooley 
and  Mr.  John  M.  Sweeney  for  the  State,  and  by  Experts  John  Mc- 
Caifrey,  McCullough  and  Mason  for  the  defense. 


The  Missouri  River. 

Evidence  of  Lyman  E.  Cooley  describing  work  on  the  Missouri 
River  from  1878  to  1891: 

‘‘General  current  5 to  7 miles  an  hour;  fiood  current  8 miles  an 
hour.”  “IVe  navigated  through  this.”  • (Abst.,  p.  795.) 


f;:; 

Tlsual  dojiili  in  low  wnlor  w^as  to  .‘)  f(‘ot.  SoiiKdimos  15  to 
20  iiiclios.  (A])st.,  ]).  795.) 

Narrow  cliannels  in  low  water  were  from  100  feet  to  100  yards 
wide.  In  high  water  11  miles  wide.  (.Vhst.,  p|).  795-790.) 

Low  water  channel  of  Missouri  around  through  the  sandy  hed 
was  extremely  sinuous.  (Ahst.,  p.  796.) 

The  large  boats  would  run  on  12  to  14  inches,  light,  and  from 
4 to  51  feet,  loaded.  (Abst.,  p.  797.) 

Currents  on  the  Upper  Missouri  8 to  10  miles  an  hour.  Steam- 
boats had  to  warp  over  them.  (Abst.,  p.  798.) 

Defendant’s  witnesses,  AVoerman  (Abst.,  p.  1429)  and  Johnson 
testified  to  use  of  the  Missouri. 

U.  S.  Eng.  Uep.  1883,  AMI.  II,  pp.  1340-45.  (Abst.,  p.  1189.) 

U.  S.  Eng.  Kep.  1878,  part  7,  p.  696.  (Abst.,  p.  1192.) 

Dauphin’s  Eapids,  between  Benton  and  Carroll:  Fall  for  3,200 
feet  is  at  rate  of  8.9  feet  per  mile.  For  1,000  feet  is  at  rate  of 
11.42  feet  per  mile. 

List  of  24  rapids,  with  submerged  bars,  snags,  rocks  and  boul- 
ders. (Abst.,  p.  1193.) 

Fall  at  Cow  Island  for  6,000  feet  is  at  the  rate  of  5.16  feet  per 
mile.  (Abst.,  p.  1196.) 


The  Gasconade  River. 

The  Gasconade  was  a tributary  of  the  Missouri  Elver  with  from 
12  to  18  inches  of  water.  A steamer  100  feet  long,  14  feet  wide  and 
drawing  10  to  12  inches  of  water  I'an  up  it,carrying  50  to  60  tons. 
(Ev.  of  Cooley,  Abst.,  p.  798.)  (Thomas  T.  Johnston,  expert  evi- 
dence for  defense. 


The  Allegheny  River. 

Mason,  for  the  defense,  testified  that  there  were  no  locks  or 
dams  in  the  Allegheny.  (C.  F.,  2982.)  (Abst.,  p.  1220.) 

U.  S.  Eng.  Eep.  1895,  pp.  2410-12,  gives  map  and  profile  of  Al- 


i’A 

le^'lieiiy,  showing’  a fall  of  oO  feel  in  'M)  miles  taken  ii})  by  six  locks 
and  six  dams.  (Ahst.,  ]).  Idol.) 


The  Sangamon  Ewer. 

l^eck’s  Gazetteer  of  Illinois  in  1884,  pp.  826,  828,  258: 

Tlie  Sangamon  was  declared  a navigable  stream  by  Act  ap- 
proved December  26,  1822.  (L.  1822-8,  p.  81.) 

Improvement  by  navigation  antborized  by  Act  apiiroved  March 
1,  1838.  (L.  1833,  p.  126.) 

These  Aids  were  enforced  and  held  proof  of  navigability  in 
Clark  V.  Lake,  1 Scam.,  329  (1835). 


Columbia  and  Snake  Ewers. 

U.  S.  Eng.  Hep.  1875,  Part  II,  App.  GG-2,  p.  772-779.  (Abst., 
pp.  1199-1202.) 

U.  S.  Eng.  Eep.  1891,  Part  V,  App.  AVW-8,  p.  3210.  (Abst.,  pp 
1197-1198.)* 

3210  et  seq.,  containing  following  list  of  rapids: 

(We  have  consolidated  here,  the  ‘‘List  of  the  principal  rapids 
between  Celilo  and  Lewiston,  with  such  physical  data  as  to  fall 
and  slopes  as  are  obtainable  from  the  records  of  this  office,”  in  the 
Keport  for  1891,  with  another  list  in  the  K.eport  for  1875,  and  tes- 
timony thereon  by  the  witness  Gray.) 


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VII. 

THE  LAW  OF  NAVIGABLE  STREAMS. 

I. 

THE  LEGAL  DEFINITION  OF  A NAVIGABLE  STREAM. 

A NAVIGABLE  STREAM  IS  A STREAM  HAVING  SUFFICIENT  DEPTH  OF 
WATER  TO  AFFORD  A CHANNEL  FOR  USEFUL  COMMERCE. 

1.  THIS  IS  THE  LAW  OF  ILLINOIS. 

Schulte  V.  Warren,  218  111.,  108. 

People  V.  Board  of  Supervisors,  122  111.  App.,  40. 

People  V.  City  of  St.  Louis,  5 Gilm.,  251. 

Joliet,  etc.,  R.  Co.  v.  Healy,  94  111.,  416;  affirmed  116  U.  S., 
191. 

‘^commerce”  is  not  confined  TO  THE  TRANSPORTATION  OF  FREIGHT. 

TRAVEL  BY  PERSONS,  AND  THE  TRANSPORTATION  OF  PERSONS  BY  BOATS, 
IS  COMMERCE. 

Gibbons  v.  Ogden,  9 Wheat.,  1,  at  215-17. 

Passenger  Cases,  7 How.,  286,  at  401,  per  McLean,  J.,  Mc- 
Kinley, J. ; concurred ; at  421  and  431,  per  Wayne,  J.  ; 
at  446-7,  per  'Catron,  J. ; at  462-3,  per  Grier,  J. 

Taney,  C.  J.,  Daniel  and  Woodbury,  JJ.,  filed  elab- 
orate dissenting  opinions.  Nelson,  J.,  concurred  with 
Taney^  C.  j. 

By  5 to  4 the  (piestion  was  settled  for  all  time;  and  the 
line  of  division  was  the  same  as  that  in  the  cases  on  the  Ordi- 
nance of  1787. 

Commerce  is  intercourse.  It  includes  the  intercourse  and  all  the 
initiatory  and  intervening  acts,  instrumentalities,  dealings,  means 
and  appliances.  It  is  human  intercourse  in  the  largest  sense. 

Per  Marshall,  C.  J.,  9 Wheaton,  211 ; per  Johnson,  J.,  id., 
229-30. 

Brennan  v.  City  of  Titusville,  153  U.  S.,  289. 

Hall  V.  Be  Cuir,  95  U.  S.,  485,  491. 

McNaughton  v.  McGirl  (20  Mont.,  124,  49  Pac.  Pep.,  651- 
3),  38  L.  P.  A.,  367. 

The  early  travel  on  the  Des  Plaines  River  ivas  commerce. 


The  ILLINOIS  law  on  this  subject  has  undergone  a change. 
The  eart.y  (wses  adopted  the  tide- water  test. 


1842 

Middleton  v.  Pritchard. 

, 3 Seam.,  510. 

1868 

Ensniinger  v.  People  e. 

X red.  City  of 

'airo,  47 

111., 

384. 

1 872 

Rraxon  v.  Bressler,  64 

111.,  488. 

1876 

Ilouck  V.  Yates,  81  111., 

179. 

1887 

Trustees  of  Schools  v.  k 

lehr  oil,  ^20  111., 

509  (Ha 

If  way  case), 

1887 

St.  Louis  Bridge  Co.  v. 

East  St.  Louis, 

121  111., 

238 

(Half- 

way  ease). 


B. 

The  tide- water  test  was  tacitly  disregarded,  but  no  new  test 

FORM.VLLY’  SUBSTITUTED  IN  THE  FOLLOWING  CASES  I 

1865  Illinois  River  Packet  Co.  v.  Peoria  Bridge  Ass’n.,  38  111., 
-^67. 

1868  City  of  Chicago  v.  La  ft  in,  49  111.,  177. 

1869  (tity  of  Chicago  v.  McGinn,  51  111.,  66,  72. 

1869  Chicago  S Pacific  N.  Co.  v.  Stein,  75  111.,  41. 

1881  Washington  Ice  Co.  v.  Shortall,  101  111.,  46,  52. 

1893  City  of  Chicago  v.  Law,  144  111.,  569,  576. 

C. 

THE  NEW  TEST  OF  NAVIGABILITY^  IN  FACT  IS  EXPRESSLY"  LAID  DOWN 
IN  THE  FOLLOWING  CASES: 

1848  People  v.  St.  Louis,  10  111.  (5  Gilm.),  351,  368,  373. 

1879  Joliet,  etc.,  R.  Co.  v.  Healy,  94  111.,  416;  affirmed  116  U.  S., 
191. 

1891  TAgare  v.  Chi.  M.  S N.  R.  Co.,  139  111.,  46;  s.  c.  166  111.,  249. 
1905  People  \.  Board  of  Supervisors,  122  111.  App.,  40. 

1905  Schulte  v.  Warren,  218  111.,  108. 


The  dictum  in  Iluhhard  v.  I)cll,  54  111.,  110,  examinki). 

That  was  by  Bkkese,  J.,  and  was  infliiciK'ed  by  Ills  eaiTiei-  tid(^- 
water  decisions,  and  was  uncalled  for,  and  erroneous. 

There  (a)  the  bill  did  not  waive  oath; 

(b)  tlie  answer  denying  navigability  was  sworn  to; 

(c)  there  was  no  replication;  and 

(d)  there  were  no  proofs. 

The  case  is  a case  on  pleadings,  and  ‘‘the  pleadings  establish 
the  fact  that  Big  Creek  was  not  a navigable  stream.” 

The  case  was  one  of  pleading  purely,  and  the  rules  of  pleading 
required  tlie  dismissal. 

Daniel,  Ch.  Pr.,  5 Ed.,  "^834. 

Pankey  v.  Raurn,  51  111.,  88,  91. 

D’Wolf  V.  Long,  2 Gilm.,  679. 

Mason  v.  McGirr,  28  111.,  322. 

The  English  law  on  the  question  of  public  right,  which  Beeese, 
J.,  intended  to  follow,  is  just  the  reverse, — that  the  tide-water 
test  was  not  even  the  English  common  law;  and  that  streams  float 
able  one  way  were  public  highways. 

Grant  v.  Gordon,  Mor.  Die.,  12,822;  L.  B.  2 App.  Cas.,  872; 
1 Farnham,  115. 

Sir  Matthew  Hale,  de  Jure  Marls,  Ch.  1,  2.  Quoted  by 
Dickey,  J.,  in  Parher  v.  People,  111  111.,  581. 

2.  Legal  definitions  and  principles  generally,  as  to  navigability. 

The  tide-water  test  is  now  universally  rejected  and  navigability 
in  fact  nniversally  accepted  in  the  United  States. 

Genesee  Chief  v.  Fitzhugh,  12  How.  (53  U.  S.,)  443. 

Overrnling : 

The  Thomas  Jefferson,  10  Wheat.,  428; 

'The  Orleans, — 11  Peters,  175. 

Barney  v.  Keokuk,  94  U.  S.,  324  (1876 — Miss.  River).  An 
action  of  ejectment.  Plea,  title  in  defendant. 


70 


Uvld  that  ])laiiiti ft  owned  tlie  fee,  hut  subject  to  the  easement  of 
])u))li(*  use. 

I )y  the  court : 

“Tlie  confusion  of  navigable  witli  tide-water,  found  in  the 
nionuinents  of  the  comnion  law,  long  ])revailed  in  this  country, 
notwithstanding  the  broad  difterences  existing  between  the  ex- 
tent and  topography  of  the  British  Island  and  that  of  the 
American  continent.  It  had  the  influence  for  two  generations 
of  excluding  the  admiralty  jurisdiction  from  our  great  rivers 
and  inland  seas;  and  under  the  like  influence  it  laid  the  founda- 
tion in  many  States  of  doctrines  with  regard  to  the  ownership 
of  the  soil  in  navigable  waters  above  tide-water  at  variance 
with  sound  principles  of  public  policy.  Whether,  as  rules  of 
property,  it  would  now  be  safe  to  change  these  doctrines  where 
they  have  been  applied,  as  before  remarked,  is  for  the  several 
states  themselves  to  determine.  If  they  choose  to  resign  to  the 
riparian  proprietor  rights  which  properly  belong  to  them  in 
their  sovereign  capacity,  it  is  not  for  others  to  raise  objec- 
tions. ’ ’ 

The  civil  law  is  in  reality  the  source  of  our  present  rule. 

Ten  Eijck  v.  Town  of  Warwick,  75  Hun,  562. 

Ingraham  v.  Wilkinson,  41  Mass.  (4  Pick.),  268. 

Stuart  V.  Clark’s  Lessee,  32  Tenn.,  9. 

A stream  which  can  he  used  is  navigable. 

Commonwealth  v.  Vincent,  108  Mass.,  441. 

If  it  can  be  used  at  certain  seasons  by  barges,  it  is  navigable. 

Bucki  V.  Cone,  25  Fla.,  1. 

Broadnax  v.  Baker,  94  N.  Car.,  675. 

MTiere  streams  are  of  sufficient  depth  naturally  for  valuable 
navigation  by  flatboats  and  small  vessels,  of  light  draft, — the  public 
has  the  right  to  a free  enjoyment  of  the  streams  for  the  purpose 
of  navigation  to  which  it  is  naturally  adapted. 

Webster  v.  Harris  (Tenn.),  59  L.  K.  A.,  324. 

Goodwill  V.  Police  Jury,  38  La.  Ann.,  752,  772. 

Tuscaloosa  County  v.  Foster,  132  Ala.,  392. 

State  V.  Baum,  128  N.  Car.,  600. 

Pecuniary  profit  is  not  an  essential  of  navigability. 

Lamprey  v.  State,  52  Minn.,  181;  18  L.  K.  A.,  670. 

Attorney  Genercd  v.  Woods,  108  Mass.,  436. 


71 


.Vll  waters  prac'tieally  available  for  floating'  e.onirnca-ee  by  any 
method  are  iiavii>'able,  as  the  servitude  of*  ])u})lic  interests  d(i[)ends 
rattier  on  the  piii'})ose  for  wtiieti  the  putilie  reipiires  ttie  use  than 
any  jiartieular  mode  of  use. 

Moore  v.  Sanborne,  2 Mich.,  519. 

II. 

REMOVABLE  DIFEICULTIES  AND  PARTIAL  LIMITATIONS  DO  NOT  CONTROL 

NAVIGABILITY. 

1.  THE  EXISTENCE  OF  OBSTRUCTIONS  AND  INTERRUPTIONS  IS  NOT  CON- 
TROLLING. 

The  Montello,  20  Walt.,  430. 

St.  Anthony  Water  Power  Co.  v.  Water  Commissioners, 
108  U.  S.,  349. 

State  Reservation  at  Niagara  Falls,  37  Him,  537,  547  (af- 
firmed 102  N.  Y.,  734). 

Broadnax  v.  Baker  (Hoanoke  lliver),  94  N.  Car.,  675. 

Attorney  General  v.  Harrison,  12  Grants  Ch.  (U.  C.),  466. 

Goodwill  V.  Police  Jury,  38  La.  Ann.,  752. 

Inhabitants  of  Charleston  v.  Middlesex  County  Comers., 
44  Mass.  (3  Mete.),  202. 

State  V.  Bell,  5 Port.  (Ala.),  365. 

So  the  existence  of  artificial  obstructions,  such  as  dams,  bridges 
and  fences,  does  not  deprive  tlie  stream  of  its  character,  nor  tlie 
pu])lic  of  its  right. 

Clark  V.  Lake,  1 Scam.,,  229. 

West  Chi.  St.  R.  Co.  v.  People,  214  111.,  9;  affirmed  201 
U.  S.,  506. 

(In  harmony  with  this  see  valuable  compendiinn  of  law  on 
relation  to  Federal  and  State  Governments  to  water-power  dams, 
by  the  U.  S.  Senate  Committee  on  Commerce,  Congressional  Pec- 
ord,  April  30,  1908,  ])p.  5664-5667. 

The  committee  find  that  ‘Ghe  Federal  Government  has  nothing 
to  sell  and  therefore  has  no  moral  or  legal  ground  to  demand 
compensation.”  That  is  the  province  of  the  States. 


Tlio  Federal  license  (1)  autliorizes  the  Federal  Government 
to  control  the  work;  and  (2)  establishes  the  fact  that  the  dam  luill 
not  affect  the  navigahilitii  of  the  stream. 

Kansas  v.  Colorado,  20d  IT.  S.,  4(). 

U.  S.  V.  Itio  (irande  Co.,  174  U.  S.,  ()90.) 

2.  The  stream  need  not  be  navigable  in  its  entirety. 

Schulte  V.  Warren,  218  111.,  108,  120. 

Town  of  Hempstead  v.  City  of  New  York,  52  X.  Y.  App. 
Div.,  182;  05  X.  Y.  Sup.,  14,  18. 

Sd.  Anthony  Falls  Water  Power  Co.  v.  St.  Paul  Water 
Commissioners,  168  U.  S.,  549. 

Spooner  v.  McConnell,  1 McLean  (U.  S.),  337. 

Caldwell  v.  McLaren,  L.  R.,  9 App.  Cas.,  392,  per  Black- 
burn, L.  J. 

3.  Perennial  navigability  is  not  essential. 

It  is  not  necessary  that  the  stream  he  navigable  all  the  year  round. 

This  was  early  settled  in  England  in  the  case  of  tide  streams. 
The  contention  was  advanced  that  they  were  not  navigable  because 
their  beds  were  left  bare  by  the  ebb  of  the  tide  for  several  hours 
every  day  but  the  courts  held  such  streams  ‘^navigable  and  a high- 
way at  all  times  and  at, all  states  of  the  tide.” 

Colchester  v.  Brook,  7tli  Queen’s  Div.,  339,  which  is  fol- 
lowed here : 

Cummins  v.  Spruance,  4 Harr.  (Del.),  315. 

So  interruption  by  ice  in  the  winter  months,  it  was  early  settled, 
did  not  destroy  navigability. 

And  this  court  put  low  water  in  summer,  a^nd  closure  by  ice  in 
the  winter,  on  the  same  footing. 

Illinois  Hirer  Packet  Co.  v.  Peoria  Bridge  Ass’n.,  38  111., 
467. 

Capacity  for  navigation  in  a period  sufficiently  regular  and  con- 
tinued to  make  the  stream  available  for  travel  or  commerce  is  suf- 
ficient. 

Walker  v.  Allen,  72  Ala.,  456. 

Little  Bock,  etc.,  B.  Co.  v.  Brooks,  39  Ark.,  403.  (Bayou 


Barllioloiiunv  hold  navigahh'  allliou^ii  llio  annual  lirm; 
''not  very  Ihng/’  i-  ('•,  d wooks,  (>  inontlis.) 

Pierpont  v.  Loveless,  72  N.  Y.,  21 1. 

Berh  Co.  v.  Catmvba  Liuuher  (U).,  IKi  N.  (kir.,  721. 

Soiith  V.  Fonda,  ()4  Miss.,  551. 

Thunder  Bay,  ete.,  Co.  v.  Speechley,  21  Midi.,  225. 

Hogg  V.  Zanesville  Canal  Co.,  5 Ohio,  410. 

Shair  V.  Osivego  lee  Co.,  10  Ore.,  271. 

Hallock  V.  Siitor,  27  Ore.,  9. 

Gaston  v.  Maee,  22  Va.,  14. 

Olson  V.  Merrill,  42  lYis.,  203. 

4.  It  is  not  necessary  that  it  be  navigable  up-stream, — that 

IS,  AGAINST  THE  CURRENT. 

1 Farnliam  on  M^aters,  sec.  25,  p.  121. 

Angel  on  Highways,  45. 

Sigler  v.  The  State,  7 Baxt.  (Tenn.),  493. 

Ten  Eyck  v.  Wanrielx,  75  Him,  562. 

Farmers’  Cooperative  Mfg.  Co.  v.  Alhennarle,  etc.,  B.  Co., 
117  N.  Car.,  579;  29  L.  R.  A.,  700. 

Buffalo  Pipe  Line  Co.  v.  A.  Y.,  etc.,  R.  Co.,  10  Abb.  (N. 
Cas.),  107. 

Grant  v.  Gordon,  Mor.  Die.,  12,822;  L.  R.,  2 App.  Cas.,  872. 

5.  Actual  use  is  not  necessary,  capacity  for  use  is  sufficient. 

The  Daniel  Ball,  10  AVall.,  557. 

Jlickok  V.  nine,  23  Ohio.  St.,  522. 

"Tlie  test  of  navigability  is  navigable  ca])acity,  without 
regard  to  the  character  of  the  craft,  the  business  done,  the 
ease  of  navigation,  etc.,  * * * stream  may  be  useful 

for  commerce  at  one  time,  and  vet  circumstances  may  make 
it  so.’^ 

Attorney  General  v.  City  of  Fan  Claire,  27  Wis.,  400: 
("The  actual  navigation  may  be  little,  and  the  obstruc- 
tion might  be  slight.’’  Per  Ryan,  C.  J.) 

Tleytvard  v.  Farmers’  Min.  Co.,  42  S.  Car.,  138. 

"That  the  commerce  and  business  on  the  river  local  to  the 
county  is  small  or  in  onr  judgment  of  'no  importance,’  does 
not  change  the  character  of  the  river,”  etc. 

Stockton  V.  Poivell,  29  Fla.,  1;  15  L.  R.  A.,  42,  at  45. 


74 


(There  tlie  (luestioii  arose  on  a river  more  navigable  else- 
ivhere,  for  the  improvement  of  whieli  witliin  tlie  county,  the 
county  proposed  to  issue  bonds.) 

A stream  is  navigalhe  “if  of  sufficient  capacity  to  float  the  pro- 
ducts of  tlie  mines,  the  forests,  or  the  tillaye  of  the  country, 
through  which  they  float,  to  marketd^ 

Jjetvis  V.  Coffey  County,  77  Ala.,  190. 

Sullivan  v.  Spotstvood,  82  Ala.,  163. 

Webster  v.  Harris,  69  S.  W.  (Tenn.),  782. 

Same  is  held  in: 

116  N.  Car.,  731. 

39  Ark.,  403. 

23  Ohio,  523. 

75  Hun.,  562,  cited  supra. 

Not  frequency,  hut  capacity,  is  the  test. 

Hickok  V.  nine,  23  Ohio  St.,  523. 

The  fact  that  there  is  no  present  use  and  no  present  injury,  is 
immaterial. 

Attorney  Gen.  v.  Smith,  109  Wis.,  532. 

People  V.  St.  Louis,  5 Gilm.,  368. 

Future  development  of  the  country  must  be  considered  as  well 
as  present,  or  past  use. 

“Evidence  of  navigability  should  not  be  confined  to  present 
or  past  use  of  the  water  as  a highway  of  commerce  for  the 
transportation  of  agricultural  and  other  products  to  market, 
but  the  capacity  for  such  use  must  be  considered,  and  the 
future  development  of  the  country  along  the  shores  of  the 
bay,  or  of  new  channels  of  commerce  must  not  be  lost  sight  of, 
whether  a present  impiiry  may  develop  the  probability  of  such 
use  or  not. 

Jones  V.  Johnson,  6 Tex.  Civ.  Ap.,  262. 

6.  The  public  eight  is  x^ot  lost  by  x^ox-usee. 

No  length  of  time  will  substantiate  the  right  to  exclude  the  pub- 
lic from  the  use  of  the  stream. 

“No  right  can  be  acquired  by  prescri})tion  which  will  in- 
terfere with  this  right  of  navigation.” 

1904  Beidler  v.  Sanitary  District  of  Chicago,  211  111.,  628,  at 
635. 


(>) 


1ScS4  Parin'  v.  People,  111  111.,  581. 

1850  Clip  of  All  oil  V.  III.  Transporlaiio'ii  (U).,  12  111.,  58.  (Mis- 
sissi])])i  llivei*.) 

18i;>  Annidel  v.  HleCiilloeli,  10  Mass.,  70  ( KeriTiohunk  Ilivoi-). 

1822  CoiiiiiioiiivealtJi  v.  Charleston'll,  1 Pick.,  180  (Milkirs 

Piver). 

1882  Penn.  Canal  Co.  v.  llarris,  101  Penn.  St.,  80  (Pennsylvania 
Canal). 

Burbank  v.  Fay,  5 Lansing,  397. 

Attorney  Gen.  v.  Revere  Copper  Co.,  152  Mass.,  444;  9 
L.  P.  A.,  510. 

Ogdenshiirg  v.  Lovejoy,  2 Thompson  & C.,  83;  affirmed,  58 
N.  Y.,  662. 

V eazie  v.  Dwinel,  50  Me.,  497. 

Olive  V.  State,  86  Ala.,  88;  4 L.  E.  A.,  33. 

Aqueduct  River  Lumber  Co.  v.  Olcott  Falls  Co.,  65  N.  H., 
290 ; 13  L.  K.  A.,  826. 

7.  The  public  right  in  a navigable  watercourse  is  non-alien- 

ABLE. 

West  Chicago  St.  R.  R.  Co.  v.  People,  214  111.,  9;  affirmed, 
201  IT.  S.,  506  (cases  of  tiinnel  under  Chicago  Eiver). 

Cox  V.  State,  3 Blackf.  (Ind.),  193;  (White  Eiver). 

Prince  v.  irhs.  State  L.  cb  J.  Co.,  103  AVis.,  550;  79  N.  AV., 
780;  74  Am.  St.  Ee]L,  904. 

People  ex  rel.  Attorney  General  v.  Kirk,  162  111.,  138. 

III.  Central  R.  It.  Co.  v.  Illinois,  146  U.  S.,  381,  453. 

Conn.  River  Lumber  Co.  v.  Olcott  Falls  Co.,  65  N.  H., 
290. 

And  here  Canal  Trustees  v Haven,  5 (lilin.,  548,  and  11  111.,  554, 

is  distinguished.  See  argument. 

8.  Statutes  declaring  streams  navigable  are  competent  to 

DEFINE  THE  STANDARD  OF  NAVIGABILITY,  AND  PRIMA  FACIE,  ESTABLISH 

THE  PUBLIC  CHARACTER  OF  THE  STREAM. 

Clark  V.  Jjake,  2 111.  (1  Scam.),  229. 

Coovert  v.  O'Conner,  8 AVatts.,  476. 

Union  Canal  Co.  v.  Landis,  9 AVatts.,  228. 

Horton  v.  Pace,  9 Tex.,  1. 

Harrison  v.  Holland,  3 Gratt.  (Va.),  247. 


li'  a stream  is  navigable  for  y)art  of  tlie  time,  it  will  be  regarded 
as  a navigable  stream  when  so  declared  by  the  legislature. 

Staid  V.  Dibble,  49  N.  Car.  (4  Jones,  1),  107. 

Davis  V.  Jerkins,  50  N.  Car.  (0  Jones  L.),  290. 

Baker  v.  Leivis,  38  Pa.,  dOl  ; 75  Am.  Decs.,  598. 

Denton  V.  State,  70  N.  Y.  Sup.,  167;  72  Ap.  Div.,  248. 
Cooper  V.  Hall,  5 Ohio,  320  (The  Little  Miami). 

Selrnan  v.  Wolfe,  27  Tex.,  68  (Angelina  Eiver). 

Whit  V.  Jefcote,  10  Rich.  L.  (S.  Car.),  389  (Pond  Branch). 
Barclay  B.  S Co.  v.  Ingham,  36  Pa.,  194  (Towanda  Creek). 

The  Ijegislature  may  pass  a declaratory  Act,  which  though  in- 
operative in  the  past,  may  act  in  future. 

P.  M.  Gen.  v.  Early,  12  Wheat.,  135,  138,  per  Mabshall, 

C.  J. 


In  applying  a declaratory  Act,  the  courts  will  give  them  their 
intended  practical  operation  as  far  as  possible. 

Bassett  v.  ZJ.  8.,  2 Nott  & McCord  (Court  of  Claims), 
448. 

Bottenberger  et  al.  v.  Horicon  Drainage  Dist.,  Wis.,  April 
17,  1908 ; 116  N.  W.,  12. 

Shaw  V.  Cratvford,  10  Johnson  (N.  Y.),  235. 

People  V.  Gutchess,  48  Barb.,  656. 

State  V.  Pool,  74  N.  Car.,  402;  opinion  of  Rodmox,  J. 


VIII. 

JUDICIAL  NOTICE  WILL  BE  TAKEN  OF  THE  HISTOEY  OF  THE  STEEAM,  AND 
OF  THE  HISTOEY  OF  THE  STATE,  AND  OF  THE  HISTOEY  OF  THE  AET,  BY 
THIS  COUET,  AS  WELL  AS  THE  TEIAL  COUET. 

THE  POWEE  TO  TAKE  JUDICIAL  NOTICE  IS  EXEECISED  ALIKE  BY  COUETS 
OF  EEVIEW  AND  COUETS  OF  FIEST  INSTANCE. 

Hanley  v.  Donoghue,  116  U.  S.,  1. 

Hunter  v.  N.  Y.  Sc.  R.  Co.,  116  N.  Y.,  615. 

Doivning  v.  Miltonville,  36  Kans.,  740. 

People  V.  Truckee  Lumber  Co.,  116  Cal.,  397. 

State  V.  Wabash  Paper  Co.  (Ind.),  51  N.  E.,  949. 


( i 

Call'  V.  M’Caniphell,  (il  Ind.,  97. 

McCoy  V.  Columhian  Exposition,  18()  III.,  359. 

City  of  Chicago  v.  Duffy,  117  III.  Ap]).,  261. 

(Andreas  History  of  Chicago,  judicially  noticed  })y  tlie 
Appellate  Court,  p.  277). 

Affirmed,  218  111.,  242. 

Judicial  Notice. 

COURTS  TAKE  JUDICIAL  NOTICE  OF  MATTERS  OF  HISTORY  AND  OF  STAND- 
ARD WORKS,  IN  WHICH  THOSE  MATTERS  OF  HISTORY  ARE  RECORDED. 

Morris  v.  HarmeCs  Heirs,  7 Peters,  554-8,  9. 

1672,  St.  Katherine’s  Hospital,  1 Vent,  151,  Speed’s  Chron- 
icles.” 

1682,  Bronuker  v.  Atkyns,  Skinner,  14,  ‘‘Speeds’  Chronicles.” 

1718,  Proceedings  respecting  the  Education,  etc.,  of  the  Koyal 
Family,  15  How.  St.  Tr.,  1202,  1203,  1206,  1209  (the 
Judges  drew  up  an  opinion  upon  the  King’s  prerogative 
in  the  matter,  and  cited  precedents  on  the  exercise  of  the 
prerogative  from  Rymer’s  Foedera,  Lord  Clarendon’s 
History,  Cotton’s  Record,  Kennett’s  History  of  Eng- 
land, Burnet’s  History  of  the  Reformation). 

1834,  Marguerite  v.  Chouteau,  3 Mo.,  540,  555  (DiiPratz,  Barbe 
Marbois  and  others’  works,  consulted  as  to  the  existence 
of  slavery  of  Indians  in  America  in  the  1700s). 

1836,  Com.  V.  Alhurger,  1 Whart,  469,  473  (a  letter  of  William 
Penn  contirming  a certain  grant;  its  mention  “in  Proud 
and  various  other  historical  works”  treated  as  suffi- 
cient, the  matter  being  ancient). 

1869,  Baird  v.  Rice,  63  Pa.,  489,  496  (in  Hetermining  the  ancient 
plan  of  London’s  streets,  etc.,  so  as  to  interpret  Penn’s 
plan  of  Philadelphia,  the  following  works  were  con- 
sulted: Maitland’s  History  of  London,  1754;  Bohn’s 
Pictorial  Handbook  of  London,  1854;  Great  London  l)i- 
rectoiy,  1855). 

1811,  Had f eld  v.  Jameson,  2 Muiif.,  53,  71,  i)er  Tfckeh,  d.  (Ed- 


78 


ward’s  History  of  the  Wost  Indies,  used  to  sliow  tlie  gov- 
ernment of  liispaniola). 

The  erroneous  diction  contra  suitably  enough  came  from  the 
mouth  of  the  infamous  Jeffries. 

KiSd,  L.  C.  J.  Jeffreys,  in  Lady  Ivy’s  Trial,  K)  How.  St.  Tr.,  555, 
625  (rejecting  a history  offered  to  show  the  date  of 
Charles  V. ’s  abdication  and  Philip  and  Mary  becoming 
king  and  queen  of  Spain,  over  a century  before:  ‘‘In- 
stead of  records,  the  upshot  is  a little  lousy  history 
* * * * Is  a printed  history,  written  by  I know  not 

who,  an  evidence  in  a court  of  law?” 

The  following  matters  will  be  noticed  judicially: 

Public  documents  of  the  State  and  of  the  United  States  report- 
ing acts  of  the  State  and  Government,  such  as  census  reports 
and  reports  of  engineers  in  surveying  the  river  for  improvement. 
Chi.  & A.  R.  Co.  V.  Baldridge,  177  111.,  229. 

Miles  V.  Stevens,  3 Pa.  St.,  21,  45  Am.  Dec.,  621. 
Campbell  v.  Wood,  116  Mo.,  196  (of  general  instructions 
issued  by  the  surveyor  general  to  the  deputy  surveyors 
for  the  States  of  Illinois  and  Missouri.) 


The  courts  will  receive  public  documents  such  as  census  re- 
ports (96  Ala.,  403;  60  Vt.,  351). 

United  States  Engineers’  reports  of  Government  Surveys  {Miles 
V.  Stevens,  3 Pa.  St.,  21;  45  Am.  Dec.,  621). 

Reports  of  the  U.  S.  Signal  Service  {N.  W.  By.  Co.  v.  Trayes, 
17  111.  App.,  136;  Evanston  v.  Gunn,  99  U.  S.,  660). 

State  Registers  and  Reports  {Lurton  v.  Gilliam,  1 Scam.,  577 ; 
33  Am.  Dec.,  430;  Nulford  v.  Greenhiish,  77  Me.,  330;  Worcester 
V.  Northboro,  140  Mass.,  397). 

Legislative  Journals  {Boot  v.  King,  7 Cow.,  613;  State  v.  Smalls, 
77  S.  Car.,  262). 

State  papers  {Watkins  v.  Holmans,  Lessee,  16  Pet.,  25;  Bryan 
V.  Forsyth,  19  How.,  334;  Gregg  v.  Forsyth,  65  IT.  S.,  179). 

Deceased  surveyors’  reports,  tiled  notes,  declarations  and 


li) 

Mcinoninda  [Ross  v.  Rhoads ^ 15  l?a.  St.,  155;  Rirmingliarn  v. 
Anderson',  10  Pa.  St.,  5()();  Russell  v.  Werniz,  24  Pa.  St.,  52>7 ; 
Galbraith  v.  Elder,  cS  Watts.,  81,  (tllruts  Heirs  v.  Catron,  22  (Iratt., 
378;  Kirbg  v.  Leivis,  39  Fed.,  GO;  Conkling  v.  Westbrook,  81  Pa. 
St.,  81;  Penna  Coal  Co.  v.  Diinkel,  101  Pa.  St.,  103;  books  regu- 
larly kept  in  eoiiiity  offices,  though  not  technically  public  records. 
La  Salle  Co.  v.  Simmons,  5 Gilni.,  573). 

Ancient  maps  and  land  office  papers, 

Trans  Co.  v.  Christian  (Tex.),  21  S.  W.,  119. 

Foivler  v.  Scott,  64  Wis.,  509. 

Fothergill  v.  Stover,  1 Dali.,  6. 

Farr  v.  Swan,  2 Pa.  St.,  245. 

Morris  v.  Harmer’s  Lessee,  7 Pet.,  554. 

Whitman  v.  Shaw,  166  Mass.,  451. 

Unsigned  maps, 

WhiUnan  v.  Shaw  (Mass.),  44  N.,  333. 

Prouty  V.  Tilden,  164  111.,  163. 

The  laws  of  nature,  principles  of  science,  rules  and  principles 
of  mathematics. 

See,  among  others, 

Scanlan  v.  San  Francisco,  etc.,  Rg.  Co.  (Cal.),  55  Pac. 
Rep.,  694. 

McKuppen  County  v.  People,  58  111.,  191. 

Beall  V.  Dingman,  227  111.,  294. 

Fidler  v.  Shedd,  161  111.,  462. 

Pritchard  v.  Wcdker,  22  111.  App.,  286;  affirmed,  121  111., 

221. 

N.  K.  Fairbank  Co.  v.  Nicolai,  66  111.  App.,  637  (judg- 
ment reversed  on  another  point  in  167  111.,  242 ; Case 
V.  Perew,  46  Hun.,  5;  10  State  Rep.,  611). 

Sanborn  v.  People’s  Ice  Co.  (1900),  84  N.  W.,  641-643. 

Statutes,  Public  Acts  and  Resolves  of  the  Legislature  and  Con- 
gress, and  public  documents  embracing  reports  of  public  officers. 
Case  V.  Kelly,  133  U.  S.,  21. 

Covington  Drawbridge  Co.  v.  Shepherd,  20  How.,  227. 
Doyle  V.  Bradford,  90  111.,  416. 


so 


Peoria  £c.  It.  Co.  v.  People,  L16  111.,  401. 

MeCarver  v.  ITerzberg,  120  Ala.,  523. 

Htafe  V.  Delesdenier^  7 Tex.,  76. 

The  facts  of  geography,  including  political  divisions  of  the 
country  and  the  State,  and  their  respective  boundaries;  the  loca- 
tion of  the  principal  natural  features,  lakes,  rivers,  and  water 
courses,  and  their  relation  to  the  boundary  lines;  and  tlie  dis- 
tribution of  population. 

Canal  Comrs.  v.  Village  of  E.  Peoria,  179  111.,  214,  affirm- 
ing 75  111.  App.,  450. 

Gooding  v.  Morgan,  70  111.,  275. 

Harmon  v.  Chicago,  100  111.,  400. 

Wice  V.  Chi.  S N.  W.  B.  Co.,  93  111.  App.,  266  (reversed 
an  another  point  in  193  111.,  357.) 

Ross  V.  Reddick,  15  C^ain.,'  73. 

Higgins  v.  Bidlock,  66  111.,  37. 

People  V.  Truckee  Lumber  Co.,  116  Cal.,  397. 

Brnson  v.  Clark,  157  111.,  495. 

The  Montello,  11  Wall.,  411  ; 20  Wall.,  430. 

So  of  Governmental  surveys,  and  boundaries,  locations,  dis- 
tances and  areas,  deducible  tlierefrom, 

Gardner  v.  Eberhart,  82  111.,  316. 

Smith  V.  Stevens,  82  111.,  554. 

Kile  V.  Town  of  Y ellowhead , 80  111.,  208. 

C.  (T  A.  R.  Co.  V.  Keegan,  185  111.,  70,  78. 

Illustrative  Cases  on  fJuDiciAL  Notice. 

‘‘Courts  take  judicial  knowledge  of  the  geography  of  the 
country,  and  hence  judicially  know  that  the  Wabash  and’ 
Miami  Counties  are  less  than  400  miles  distant  from  the  mouth 
of  the  Waliash  Eiver.  We  also  judicially  know  that  the  cities 
of  AVabash  and  Peru  and  other  towns  in  said  counties  are 
situated  on  the  lianks  of  such  river.” 

Nov.  17,  1898  (Ind.  Sup.  Ct.)  State  v.  Wabash  Paper  Co., 
51  N.  E.  K.,  p.  949-51. 

The  court  will  take  ,pidicial  notice  of  the  existence  of  rivers 
and  creeks  em])tying  into  the  Illinois  Piver  and  of  the  fact  that 
they  carry  large  (piantities  of  sand,  sediment  and  debris  into 


SI 


such  river,  and  lhal  sliil  lli(‘  Illinois  riv(n‘  is  a,  navi^ahh' 
j-iver. 

CaiKil  Coinrs.  v.  VlllcKjc  of  Kasl  Peoria,  17!)  HI.,  1^14;  af- 
firining  77)  III.  App.,  450. 

(3884)  TJie  court  will  take  judicial  notice  of  the  fact  that 
the  Oliicago  river  is  situated  in  the  -midst  of  the  city,  where 
a dense  po})ulation  exists,  and  where  much  business  is  trans- 
acted. 

llaraion  v.  City  of  Chicago,  110  111.,  400;  ahirming  Apj). 

Ct.  (unreported).  , 

(1901)  Tile  court  will  take  judicial  notice  that  the  north 
branch  of  the  Chicago  river,  across  which  extends  the  bridge 
at  or  near  Kinzie  street,  is  a navigable  stream. 

Wice  V.  Chicago  d N.  TF.  By.  Co.,  93  111.  App.,  266;  judg- 
ment reversed  on  another  ]ioint  193  111.,  351. 

^‘We  take  judicial  notice  of  the  fact  that  the  United  States 
were  the  proprietors  of  Section  17,  Township  39  North,  range 
14  East,  and  that  they  granted  the  same  to  this  State.” 

Smith  V.  Stevens,  82  111.,  554. 

Repeated  in  C.  d A.  B.  Co.  v.  Keegan,  185  111.,  70,  78. 

The  location  of  meridians  and  lands  with  reference  to  them 
and  in  what  county  and  townshij),  will  be  ascertained  by 
judicial  notice. 

O’Brien  v.  K roeldnski,  50  111.  Ajip.,  456. 

Van  Loire  v.  Whitt eniore,  19  111.  A])]).,  447. 

Kile  v.  Toirn  of  Yelloirhead , 80  Til.,  208. 

(1876)  The  court  will  take  judicial  notice  of  governmental 
surveys  of  ])ul)lic  lands,  and  that  a (luarler  section  of  land  con- 
sists of  four  forties,  each  with  well-defined  l)ounds. 

Cardner  v.  Eherliart,  82  111.,  316. 

(1875)  And  that  the  south  line  of  section  3t)  and  the  south 
line  of  a townshi])  are  one  and  the  same  line. 

Kile  V.  Toirn  of  Yelloirhead,  80  111.,  208. 

(1873)  dudicial  notice  of  different  items  combined  and 
applied  thus: 

^^This  court  takes  judicial  notice  of  the  a('ts  of  congress  in 
I’egard  to  the  disposal  of  the  pul)lic  lands,  and  of  the  kind  of 
evidence  furnished  to  a ])urchaser,  and  of  the  system  of  sur- 
veys adopted  for  those  lands  by  congress.  It  also  takes  judi- 
cial notice  of  the  division  of  this  state  into  counties;  and, 
putting  this  knowledge  into  recpiisition,  it  enables  us  to  say, 
with  the  most  ])erfect  confidence,  that  a tract  of  land  sold  in  # 
the  Uanville  land  district,  in  this  state,  lying  in  seven  east, 
is  a tract  of  land  east  of  the  third  T)rincipal  meridian,  and  can 
he  no  other,  and  tliat  it  is  within  the  established  limits  of  the 
county  of  Livingston.” 

Gooding  v.  Morgan,  70  Til.,  275. 


(18()9)  The  ('oui’t  will  take  riotiee  that,  the  United  States 
made  no  surveys  of  lands  in  the  'State  of  Tennessee. 

II7//7r  V.  il eniuiint , ol  111.,  24-d. 

The  fact  that  the  World’s  Uoluinbian  Exposition  was  lield 
in  diieago  needs  no  ])roof. 

McCof)  V.  World’s  (Udumhuvn  Exposition^  180  111.  App., 
:kj(k 

The  court  will  tak(‘  judicial  notice  of  the  fact  that  the  home 
of  defendant  was  only  Iwo  miles  distant  from  the  court  house. 

Bnison  v.  Clark,  157  Ilk,  495. 

(1884)  The  court  wall  take  judicial  notice  of  the  fact  that 
the  Uity  of  Uhicago  is  situated  near  the  bituminous  coal  fields 
of  the  State,  and  tliat  a great  deal  of  such  coal  is  used  as  fuel 
by  the  manufacturers  of  the  city. 

IfarnioN  v.  dtp  of  Chicago,  110  Ilk,  400;  affirming  App. 
Ut.  (unreported). 

(1880)  Since  all  appro])riations  by  the  legislature  can  only 
l)e  made  by  ])ublic  law,  the  court  will  take  judicial  notice  that 
at  a certain  time  the  general  assembly  has,  by  appropriations, 
exhausted  the  constitutional  limitation  of  $8,500,000  authorized 
to  be  ex])ended  on  account  of  new  capitol  grounds  for  the  con- 
struction of  a state  house,  and  of  the  fact  that  there  is  no  money 
in  the  treasury  that  can  be  legally  applied  in  payment  of  cer- 
tain claims. 

People  V.  Stuart,  97  Ilk,  123. 

(1880)  The  court  will  take  judicial  notice  of  the  popula- 
tion of  the  county,  and  of  the  class  to  which  it  belongs,  under 
the  act  of  1872. 

Worcester  Nat.  Bank  v.  Cheney,  94  Ilk,  430. 

(1898)  Uourts  wall  take  judicial  notice  of  the  federal  census 
in  determining  a question  involving  the  number  of  inhabitants 
in  cities  within  their  jurisdiction. 

Chicago  d A.  B.  Co.  v.  Baldridge,  Counti/  Treas.,  177  111., 
229. 

(1887)  The  court  will  take  notice  of  the  seasons,  and  of 
the  times  of  harvest. 

Pritchard  v.  Walher,  22  Ilk  App.,  286;  judgment  affirmed 
121  Ilk,  221. 

(1896)  The  court  will  take  judicial  notice  of  the  laws  of 
nature,  and  that  odors  diffuse  in  the  circumambient  atmos- 
phere with  the  certainty  that  water  runs  dowm  hill. 

N.  K.  Fairhank  Co,  v.  Nicolai,  66  Ilk  App.,  637;  judgment 
reversed  on  another  point  167  Ilk.  242. 

(1899)  The  court  will  take  judicial  notice  * * * of  nat- 
ural ])henomena,  such  as  the  rising  and  setting  of  the  moon, 
and  the  difference  of  time  in  different  longitudes.  {Case  v. 
Pcrc7r,46Hun.,  57,  lOStateEep.,  811)  ^ ^ ^ 


IX. 


h:; 


THE  VAKlAliLE  AND  PKOGRESSl VE  DEVELOPMENT  OF  NAVfGATION  DOES  NOT 
DESTROY  THE  PUBTAC  RIGHT  TN  STREAMS  ORKJTNAT.LY  NAVIGABLE. 

RECENT  DEVELOPMENTS  HAVE  GIVEN  ERESH  VALUE  TO  SHALLOW  DRAET 
NAVIGATION. 

A.  AN  EXISTING  PUBLIC  RIGHT  OF  NAVIGATION  IS  NOT  LOST  BY  CHANGES 

IN  THE  CONDITION  OR  USE  OF  THE  STREAM. 

B.  BUT  CHANGES  IN  THE  STREAM  BENEFICIAL  TO  NAVIGATION  WILL  EN- 

LARGE THE  RIGHT  OF  NAVIGATION. 

C.  NAVIGATION  IS  A VARIABLE  ART.  CHANGES  IN  THE  ART  OF  NAVI- 

GATION AND  TRAVEL  MAY  ENLARGE,  BUT  NOT  DIMINISH,  THE  RIGHT 
OF  NAVIGATION. 


A. 

AN  EXISTING  PUBIHC  EIGHT  OF  NAVIGATION  IS  NOT  LOST  BY  CHANGES  IN 
THE  CONDITION  OR  USE  OF  THE  STREAM. 

People  V.  Page,  89  X.  Y.  Ap]).  Div.,  110,  relative  to  the  Mohawk 
Biver;  tlie  Court  there  said: 

^^The  fact  that  at  ])reseiit  under  the  changed  conditions  in 
the  stream,  its  use  for  commerce  or  navigation  is  insigniticant, 
does  not  destroy  the  i)ro])rietary  rights  of  the  State,  or  give 
the  Defendant  tlie  right  to  appropriate  the  stream  and  bed  to 
liis  individual  use.” 

In  Attorneg  General  v.  ('itg  of  Pan  Claire,  87  AYis.,  400,  Byan, 
C.  J.,  said : 

^‘The  actual  navigation  may  he  little  and  the  ohstrnction 
might  he  slight^ — so  the  affidavits  tend  to  show, — but  neither 
the  right  nor  the  Avrong  is  a question  of  degree.” 

No  intention  will  he  ini])lied  to  discontinue  the  right  of  way  in 
the  stream. 

Conn.  Biver  Lumber  Co.  v.  Olcotf  Falls  Co.,  64  N.  H., 
290;  18  L.  B.  A.,  826. 


84 


B. 

CHANGES  IN  THE  STREAM  JNCKEASING  ITS  DEPTH  AND  TMPKOVTNG  THE 

NAVKJATION  ENI.AR(iE  THE  EIGHT  OE  NAVIGATION.  A STREAM  SO  IM- 
PROVED IS  TO  BE  CONSIDEKED  IN  ITS  LATTER  CAPACITY. 

Schulte  V.  Wan- CM,  218  111.,  108,  120. 

Tliere  tlie  (.^oiirt  said: 

^‘Soiiie  years  ago  a Jock  and  dam  was  built  at  LaCIraiige, 
lielow  the  Jands,  wliicli  raised  the  water  of  tlie  lake  about  18 
inches;  and  afterward,  the  Sanitary  District  Canal  was 
opened,  raising  the  water  three  or  four  feet  more,  so  that 
the  natural  stage  of  the  water  in  the  river  is  alioiit  five  feet 
higlier  than  in  its  natural  condition.  * * ^ Appellant  did 

not  lose  his  title  to  the  lands  by  their  submergence;  and  we  do 
not  understand  counsel  for  appellees  to  claim  that  he  did, 
except  as  against  a supposed  public  right  of  navigation,  hunt- 
ing and  fishery.  * * * The  evidence  sufficiently  shows  that 

there  are  considerable  spaces  on  these  lands  permanently  sub- 
merged to  such  a depth,  that'  there  is  a right  of  navigation 
in  the  public.” 

The  same  Sanitary  District  Canal,  which  submerged  those  lands 
and  increased  the  depth  of  that  river  three  or  four  feet,  has  in- 
creased the  depth  of  the  Des  Plaines  Eiver  throughout  the  nav- 
igable reach  here  under  consideration,  by  the  same  three  or  four 
feet. 

The  navigability  of  a stream  so  improved  is  to  be  judged  by  its 
enlarged  capacity. 

Mendota  Chih  v.  Anderso7i,  101  Wis.,  479;  s.  c.,  78  N.  W., 
185. 

Reg.  V.  Betts,  16  Q.  B.,  1022. 

Village  of  Peivankee  v.  Savoy,  103  Wis.,  271;  50  L.  B. 
A.,  836. 

This  principle  works  both  ways;  the  increase  of  water  will 
increase  the  right;  and  the  development  of  the  art  of  navigation 
by  the  use  of  larger  vessels  requiring  the  use  of  greater  depths 
of  water,  will  extend  the  paramount  right  of  navigation,  so  that 
structures  placed  under  the  river,  which  were  lawful  and  did  not 
interfere  with  navigation  when  constructed,  will  become  unlawful 
by  reason  of  such  obstruction  resulting  from  the  increased  use 
of  the  river. 

West  Chicago  St.  By.  Co.  v.  The  People,  214  Ilk,  9,  20. 


The  rig-lit  to  have  water  flow  in  an  artifi(‘ial  eliannel  and  to 
flood  land  whicli  it  would  not  overflow  naturally  may  he  acquired  hy 
prescription. 

Vail  V.  Mix,  74  III,  127. 

Ballard  v.  Struckman,  123  111.,  636. 

Totel  V.  Bonnefoy,  123  111.,  633. 

And  tlie  public,  which  turned  the  water  in  for  public  purposes 
at  its  own  expense,  acquires,  this  right  the  same  as  a private 
person. 

Beidler  v.  Sanitary  District  of  Chicago,  211  111.,  628,  635. 

So,  on  the  other  hand,  the  development  of  navigation  by  the 
use  of  new  processes  involving  only  a shallower  depth,  will  enable 
navigation  to  be  carried  on  over  waters  which  formerly  were  not 
used,  and  the  erection  of  dams  increasing  depths  which  were 
originally  shallow,  to  an  amount  sufficient  for  the  use  of  the  stream, 

■ — will  enlarge  the  right  of  ' navigation  accordingly. 

Schulte  V.  Warren,  218  III,  108,  120. 

]\Iendota  Club  v.  Anderson,  101  Wis.,  478. 

The  right  of  navigation  is  paramount,  and  when  increased 
needs  for  navigation  require  it,  all  uses  and  claims  inconsistent 
with  the  right  of  navigation  must  give  way. 

Bridge  Co.  v.  V.  S.,  105  IT.  S.,  470. 

State  of  Pennsylvania  v.  Wheeling  Bridge  Co.,  13  How., 
518. 

17.  S.  V.  City  of  MoVuic,  82  Fed.,  592. 

Scranton  v.  Wheeler,  179  V.  S.,  159. 

(ribs on  V.  U.  S.,  166  IT.  S.,  269. 

TL  S.  V.  Bellingltam  Bay  Boom  Co.,  176  U.  S.,  211. 

1899  Mendota  Club  v.  Anderson,  101  Wis.,  479;  78  N.  W.,  185. 

The  right  of  the  public  in  the  river  as  a highway  is  not  restricted 
to  the  channel,  but  extends  to  every  part  of  the  river  bed,  into 
which  a boat  may  go. 

Porter  v.  Allen,  8 Ind.,  1. 

In  Mendota  Club  v.  Anderson,  101  Wis.,  479,  the  Court  said: 

There  is  no  claim  that  it  was  an  unlawful  structure.  Al- 
though an  artificial  structure,  which  considerably  increased 


the  (lei)tli,  the  extent,  and  breadth  of  tlie  waters  on  the  prem- 
ises in  (piestion,  yet  the  })ublie  had  the  right  to  navigate  such 
waters  after  they  were  so  increased  in  volume,  tlie  same  as 
tliongli  they  Jiad  always  remained  in  tliat  condition.  Whislar 
V.  WilkinsoH,  2'1  AVis.,  o-tb;  Volk  v.  Eldred,  2d  Wis.,  410;  Waath- 
erbij  V.  Meiklejohn,  bO  Wis.,  72,  Id  X.  W.,  097;  Hmitii  v.  Y ou- 
DuiuSj  90  Wis.,  lOd,  70  X".  W.,  1115,  and  cases  cited  by  Mr. 
Justice  Pinney  on  page  110,  90  AVis.,  and  ])age  147,  70  X”.  W. 
Ceidainly,  persons  navigating  the  lake  cannot  be  recpiired  or 
expected  to  carry  with  them  a chart  and  com])ass  and  meas- 
uring lines,  to  determine  whether  they  are  at  all  times  within 
wJiat  were  the  limits  of  the  lake  prior  to  the  construction  of 
the  dam.  * * As  to  the  Catfish  creek,  the  federal  stat- 

ute, as  it  has  existed  for  more  than  a century,  declares  that 
‘all  navigable  rivers,  within  the  territory  occupied  by  the  pub- 
lic lands,  shall  remain  and  be  deemed  public  highwaj^s;  and, 
in  all  cases,  wdiere  the  opposite  banks  of  any  streams  not 
navigable  belong  to  different  ])ersons,  the  stream  and  the 
bed  thereof  shall  become  common  to  both.’  llev.  St.  U.  S., 
2470;  Shively  v.  Boirlhy,  152  U.  S.,  d2,  dd,  14  Sup.  Ct.,  548. 
The  federal  statutes,  regarding  the  duties  of  surveyors  of 
])nblic  lands,  cited,  a]p)ly  to  such  navigable  streams.  It  is 
conceded  that  the  iiortion  of  the  Catfish  in  Question  is  a nav- 
igable stream.  Willoir  Biver  Cliih  v.  Wade  (AVis.),  70  X".  AA"., 
27d.  AVhat  has  been  said  about  the  raising  of  the  waters  of 
the  portions- of  the  lake  in  question  applies  equally  to  the  rais- 
ing of  the  water  and  broadening  and  deepening  of  the  channel 
of  Catfish  creek.’' 

“ ^ artificial  state  or  condition  of  flowing  water, 

founded  upon  prescription  becomes  a substitute  for  the  nat- 
ural condition  previously  existing,  and  from  which  a right 
arises  on  the  part  of  those  interested  to  have  the  new  con- 
dition maintained.” 

Smith  V.  Youman,  90  AAns.,  lOd;  70  X.  AA^.,  1115. 

The  same  rule  is  laid  down  in  Wetherhy  v.  Meiklejoluu  50  AAns., 
73;  13  X.  AAC,  097. 


C. 

NAVIGATION  IS  A VARIABLE  ART. 

Changes  ix^  the  art  of  navigation  and  thavel  may  enlarge,  but 

NOT  DIMIN^ISH,  THE  RIGHT  OF  NAVIGATION. 

The  Wheeliuy  Bridge  case,  13  How.,  518,  501-2,  plainly  sup- 
ports this  proposition. 

Tn  a state  of  nature,  the  Ohio  Eiver  did  not  admit  of  the  passage 


S7 


of  boats  of  (loop  (Irafl  and  lioavy  loads,  willi  tall  (‘liiiini(‘ys  and 
pilot  bouses;  and  it  'ivas  oiilij  as  improved ^ that  the  riven-  |)r(iS(n)t(Ml 
a bigliway  to  wliieli  the  bridge  was  an  obstruction. 

Tlie  commissioner  especially  found  (p.  *559)  : 

That  the  bridge  is  not  an  ohstrnction  to  the  free  nav- 
igation of  the  Ohio  by  any  vessels  propelled  by  sails. 

2.  That  the  bridge  is  an  obstruction  of  the  free  navigation 
of  'file  Ohio  by  vessels  propelled  by  steam.” 

The  Court  held  the  bridge  an  unlawful  obstruction.  The  art 
of  navigation  had  been  enlarged  by  the  invention  of  steam  and 
by  the  improvement  of  the  river. 

The  Wheeling  Bridge  case  necessarily  involves  the  principles 
that  the^right  of  navigation  grows  pari  passu  with  the  improve- 
ment of  the  stream  and  the  improvement  of  the  art.  The  AYheel- 
ing  Bridge  did  not  interfere  with  navigation  of  the  type  that 
had  existed  on  the  stream  for  a century  before;  but  it  did  inter- 
fere with  navigation  of  the  kind  developed  by  the  improvement  of 
the  channel  and  the  introduction  of  steam;  therefore  the  Court 
enjoined  the  maintenance  of  the  bridge  and  decreed  its  removal. 
The  right  of  navigation  enlarged  to  correspond  with  the  improved 
stream  and  the  improved  method  of  using  it. 

The  changes  in  the  art  of  navkjatton  have  been  : 

(1)  Toward  larger  and  larger  steamboats,  until  the  maximum 
useful  size  was  reached  and  jiassed; 

(2)  The  towing  fleet,  by  whi(*h  a small  and  powerful  tow-boat 
hauled  a fleet  of  freight  barges; 

(3)  The  freight  launch  and  motor  boat. 

Evidence  of  Palmer,  Abst.,  p.  316. 

Gould’s  ” History  of  Biver  Navigation,”  pp 

Mark  Twain’s  ^‘Life  on  the  Mississippi,”  pp.  255-256: 

Census  Beport  on  ‘‘Transportation  by  AVater,”  1906,  ]i]i. 

28-29,  33-34. 

Bailroad  and  other  bridges,  though  impeding  the  |)ractice  of 
navigation  do  not  de])rive  the  ])ublic  of  their  right  to  navigate. 

Wheeling  Bridge  case,  13  How.,  p]).  *573-7. 

People  V.  (hitch ess,  48  Barh.,  656. 

(dark  V.  Lake,  1 Scam. 


ss 


D. 

KBCENT  1)EVKL0]>MENT FREIGHT,  LAUNCH  AND  MOTOR  BOAT  HAVE 

CAITSED  A GREAT  REVrVAL  IN  SHAI.LOW  DRAFT  INLAND  NAVIGATION. 

Tlio  freiglit  laiiiieli  lias  been  in  use  since  a few  years  prior  to 
the  World’s  Pair  in  1893. 

The  motor  boat  proper,  inovinp^  ])y  internal  combustion,  with- 
out the  use  of  steam,  has  been  in  use  since  about  1900. 

They  are  specially  adapted  to  shallow  draft  navigation  on 
inland  waters.  They  were  first  built  by  the  English  for  use  on 
streams  in  Africa,  and  known  as  the  ^ ^Mosquito  Fleet.” 

They  travel  on  from  8 inches  to  2^-  feet  of  water,  and  carry 
from  5 tons  to  60  tons,  and  upwards. 

With  the  invention  of  the  freight  launch  and  motor  boat,  there 
has  been  a decided  increase  in'  the  amount  of  navigation  and 
commerce  carried  on  on  the  internal  smaller  waters  and  streams. 

Their  mannfactnre  in  the  last  few  years  has  outnumbered  that 
of  stream  vessels  by  100  to  1.  There  are  approximately  200,000 
launches  for  all  purposes, — freight,  passenger  and  pleasure,  and 
motor  boats  now  in  use. 

Evidence  of  Palmer,  Abst.,  p.  318. 

Evidence  of  Sweeney,  Abst.,  p.  321. 

Evidence  of  Fox,  Abst.,  p.  330. 

Evidence  of  Cooley,  Abst.,  p.  925. 

Coen’s  U.  S.  Patent,  on  Tunnel  Boat  propeller,  Abst., 
p.  1725. 

Evidence  of  Defendant’s  witness  Pryor,  Abst,,  p.  1029. 

Evidence  of  Defendant’s  witness  McCullough,  Abst.,  p. 
1178. 

Census  Report  on  ^^Transportation  by  Water,”  1906,  pp. 
28-34. 

‘^Present  Aspects  of  the  Mississippi  River  Problem,” 
by  Judge  R.  S.  Taylor  of  the  Mississippi  River  Com- 
mission. 

The  tunnel-bnilt  boat  is  a special  type  of  shallow  draft  boat, 
which  has  a semi-cylindrical  tunnel  in  the  bottom  of  the  boat  in 
which  the  propeller  is  placed,  and  above  which  a stand  pipe  of 


89 


Avater  is  opcM-ated;  so  ilial  tlio  boat  may  opei’atc*  in  a str(iam  a Toot 
(loop,  and  yot  tlio  pi*Oj)oll(‘r  rovolve  in  a (‘olumn  of  wator  four 
foot  (loop;  giving  all  tlio  offioionoy  capa(‘ity  of  a four-foot  stroarn  of 
water.  . 

Fividenoe  of  Fox,  Abst.,  p.  333.  ITe  testified  to  tlio  ns(! 
of  a fleet  of  eight  such  boats. 

'Coen  Patent,  U.  S.  Patent  No.  733,010,  Abst.,  p.  1725. 

The  modern  freighting  launch  and  motor  boat  have  the  same 
requirements  as  to  depth  and  draft  as  the  Mackinac  boats  and  bat- 
teaux  of  the  early  fur  trade,  but  with  a gasoline  motor  set  in  the 
bottom. 


X. 

THE  WX\TERS  OF  LAKE  MICHIGAFT  ADDED  TO  THE  DES  PLAIXES  RIVER  BY 
THE  SANITARY  DISTRICT  CHANNEL  LAWFULLA^  AND  PERMANENTLY  IM- 
PROVED THE  NAVIGATION  OF  THE  RIVER;  AND  ITS  NAVIGABILITY  IS  TO 
BE  JUDGED  AS  SO  LAWFULLY  AND  PERMANENTLY  IMPROVED. 

Schulte  V.  Warreu,  218  111.,  108,  120. 

Mendota  Club  v.  Anderson,  101  Wis.,  479;  s.  c.,  78  N.  AY., 
185. 

Smith  V.  Y oilman,  96  AYis.,  103. 

Village  of  Pewankee  v.  Savoy,  103  AYis.,  271;  50  L.  R.  A., 
836. 

The  statutes  of  Illinois,  authorizing  the  Illinois  and  Michigan 
Canal,  and  the  Deep  Cut,  and  authorizing  the  construction  of  the 
Sanitary  District  Channel,  have  ])ermanently  altered  the  face  of 
nature,  and  brought  Chicago  into  the  Mississippi  water  shed. 

Missouri  v.  Illinois,  200  U.  S.,  496,  526. 

When  such  a permanent  alteration  has  been  made,  the  stream 
is  thereafter  to  be  judged  by  its  altered  capacity  and  improved  con- 
dition. Ibid. 

The  Sanitary  District  Channel  was  constructed  for  the  primary 
purpose  of  providing  drainage,  by  the  addition  of  a vast  amount 
of  the  water  of  Lake  Michigan  to  the  Des  Plaines  Kiver,  and  the 
incidental  purpose  of  improving  the  navigation  of  the  Des  Plaines 
and  Illinois  Divers  by  means  if  the  water  so  added. 


no 


The  A(*t,  entitled:  ‘'An  Act  to  create  sanitary  districts,  and 
to  remove  o})strnctions  in  tlie  Des  Plaines  and  Illinois  Rivers,’' 
approved  May  20,  (L.  1880,  ]).  125,  2 S.  & 0.,  2nd  Ed.,  Cli.  42, 

])ar.  1-28),  was  ])assed  on  the  same  day  as  the  legislative  resolu- 
tion, entitled:  “Rivei*  lni])rovement,  Des  Plaines  and  Illinois;” 
which  described  the  i)hysical  conditions  of  the  Des  Plaines  and 
Illinois  Rivers  and  outlines  the  ])lan  for  ])oth  drainage  and  navi- 
gation ini|)rovement  and  declared  tliat: 

“It  is  conteni])hited  to  increase  the  volume  from  Lake 
^Michigan  to  300, OOO  cubic  feet  per  minute  within  a few  years 
and  ultimately  to  add  000,000  cubic  feet  or  more,  thus  enabling 
a large  de])th  for  navigation  to  he  obtained  by  an  improved 
cl  1 aim  el ; 

And  that  these  works  l)y  the  City  of  Chicago 

“Will  form  part  of  a waterway  of  large  ])ro])ortions  from 
Lake  Michigan  via  the  Des  Plaines  and  Illinois  Rivers  to  the 
Mississippi  Rivei*;” 

And  resolved : 

“That  it  is  the  ])olicy  of  the  State  of  Illinois  to  |)rocure  the 
construction  of  a waterway  of  the  greatest  ])racticable  de])th 
and  usefulness  for  navigation  from  Lake  Michigan  via  the 
Des  Plaines  and  Illinois  Rivers,  to  the  Mississippi  River.” 
(Laws  of  1889,  p]).  375-376.) 

Section  24  of  the  Drainage  Act  (2  S.  & C.,  2nd  Ed.,  Ch.  42)  shows 
the  same  purpose,  viz: 

“Section  24:  ^Vhen  such  channel  shall  be  completed,  mid 
the  water  turned  therein,  to  the  amount  of  300,000  cubic  feet 
of  water  per  minute,  the  same  is  hereby  declared  a navigable 
stream.  ’ ’ 

This  means  that  the  water  flowing  in  that  channel  is  a navigable 
stream. 

The  irater  so  turned  in  was  navigable  in  fact,  and  it  does  not 
Jose  its  navigalnlity  upon  passing  out  of  the  artificial  channel  into 
the  channel  of  the  Des  Flaines  River. 

That  water  is  just  as  navigable  half  a mile  southwest  of 
Joliet  as  it  is  half  a mile  northeast  of  Joliet. 

The  Drainage  Act  provided  ample  remedy  for  any  damage  to 
persons  or  property  by  the  adding  of  this  navigable  l)ody  of 
'vater  to  the  Des  Plaines  River. 


91 


For  pvo})erly  taken,  eoiuleiiiiiatioii  praxjecMliii^'s  ai‘(‘  aiitlioriz(‘(l. 
Ihid.,  See.  Ki. 

Power  granted  to  enter  upon,  //.ve,  widen,  deepen  end  im- 
prove anij  navigable  or  other  ivaters,  ivaterways,  canal  or  lake, 
— PKoviDKi)  tlie  public  use  thereof  slialJ  not  be  unnecessarily  in- 
terrupted or  interfered  witli,  and  tliat  the  same  shall  be  re- 
stored to  its  former  usefulness  as  soon  as  practicable.”  Ibid., 

• Sec.  17. 

Payment  of  damages,  special  taxation  authorized,  Ibid.,  Sec.  18. 

^‘Section  19.  (Damages  Recoverable.)  Every  sanitary  dis- 
trict shall  be  liable  for  all  damages  to  real  estate  within  or 
without  such  district  which  shall  be  overflowed  or  otherwise 
damaged  by  reason  of  the  construction,  enlargement  or  use 
of  any  channel,  ditch,  drain,  outlet,  or  other  improvement 
under  the  provisions  of  this  act ; and  actions  to  recover  such 
damages  may  be  brought,  etc.”  {Ibid.,  L.  of  1889,  pp.  132- 
133.) 

These  remedies  provided  by  the  Sanitary  District  Act  embrace 
both  condemnation  of  property  directly  taken,  and  the  right  of 
action  by  the  land  owner  for  property  damaged  or  interfered  with 
in  its  use,  though  not  taken. 

Sanitary  District  of  Chicago  v.  Hay,  85  111.  App.,  115, 
119. 

Sanitary  District  of  Chicago  v.  Ray,  second  case,  119 
111.,  63. 

Sanitary  District  of  Chicago  v.  Martin,  227  111.,  260. 

Beidler  v.  Sanitary  District  of  Chicago,  211  111.,  628. 

Tlie  remedy  by  condemnation  ])roceedings  ap})lies  to  ])ro])erty 
to  be  taken.  The  remedy  of  action  by  the  ])roperty  owner  applies 
to  ])ro])erty  damaged,  but  not  taken. 

i\s  to  the  latter  (the  remedy  by  action  of  the  land  owner)  it  is 
not  unlawful  for  the  Sanitary  District  to  proceed  to  construct  its 
i til provement  before  the  ascertainment  or  payment  of  the  amount 
(,f  damages. 

See  authorities  last  cited,  also: 

Peoria,  etc.,  R.  R.  Co.  v.  Schartz,  84  111.,  135. 

Parker  v.  Catholic  Bishop  of  Chicago,  146  Ilk,  158,  affirm- 
ing 41  111.  App.,  74. 

Stetson  V.  Chicago,  75  Ilk,  74. 

Patterson  v.  Chicago,  etc.,  R.  Co.,  75  Ilk,  588. 


'^riiis  principle,  that  tlu^  ascertainment  of  damages  need  not  pre- 
('ede  the  constiaiction  of  the  work,  applies  particnlarly  to  the  dam- 
ages by  tlie  flowage  oi‘  land  l)y  the  construction  of  public  works. 
Nevins  v.  Peoria,  41  Ilk,  502. 

Wahash  v.  Prie  Canal  Co.,  1(5  Tnd.,  441. 

Proprietors  of  Pocks  and  Canals  v.  Nashua  R.  Co.,  10 
Cush.,  385. 

Estahrooks  v.  Peterhorough  R.  Co.,  12  Cush.,  224. 
Trenton  Water  Poiver  Co.  v.  Raff',  7 Vroom.,  335. 

Hooker  v.  Near  Haven  Co.,  14  Conn.,  140;  s.  c.  explained  15 


Conn.,  312. 

Grand  Rapids  Booming  Co.  v.  Jarvis,  30  Mich.,  321. 

Mills  V.  U.  8.,  46  F.  E.,  746. 

Pmnpley  v.  Green  Bay  Co.,  13  AValh,  166. 

Matter  of  Commissioners  of  State  Reservation,  37  Hun, 
537,  542. 


The  improvement  of  navigation  is  a public  use. 

In  re  Burns,  155  N.  Y.,  23. 

Hazen  v.  Essex  County,  12  Cush.,  475. 

Spooner  v.  McConnell,  1 McL.,  337. 

Homochitto  Rivers  Corn.  v.  Withers,  29  Miss.,  21. 

Barney  v.  Keokuk,  94  IT.  S.,  324. 

Avery  v.  Fox,  2 Fed.  Cas.,  No.  674. 

Bedford  v.  U.  8.,  36  U.  S.,  Ct.  of  CL,  474. 

The  policy  of  the  State  does  not  authorize  the  taking  or  damaging 
of  private  property  for  private  uses;  much  less  of  public  property 
for  private  uses. 

Mather  v.  Ottcara,  114  111.,  659. 

Gaylord  v.  Sanitary  District  of  Chicago,  204  111.,  576. 

(This  latter  case  holds: 

^‘That  the  Act  of  Mills  and  Millers  in  so  far  as  it  |)urports  to 
authorize  the  condemnation  of  private  property  for  the  pur- 
poses of  public  mills  and  machinerv  other  than  public  grist 
mills,  is  void,  as  permitting  the  taking  of  property  for  ])rivate 
uses : 

and  holds,  p.  581, 

that  these  acts  were  ‘‘manifestly  passed  at  a time  when  water 
power  was  .practically  the  only  means  of  running  such  mills, 


and  vvdiicli,  in  tlie  iluni  existing-  ('ondition  of  s()(*i(‘ly,  vv(n‘e  a j)nl)- 
lic  necessity.”) 

For  sncli  ])ei*nianent  damages  by  lawful  woi-ks,  the  riglit  of  rc*- 
covery  is  conij)lete  wlien  the  permanent  cliange  in  the  face  of  nature 
is  made.  Tlie  owner  wlio  owns  the  pro])erty  at  that  time  has  the 
right  of  recovery,  once  for  all,  of  all  damages,  i)ast,  present  and 
future. 

Chicago  S Alton  B.  Co.  v.  Maher,  91  111.,  312. 

Chicago  S Eastern  III.  R.  Co.  v.  Loeh,  118  111.,  203. 

III.  Cent.  V.  Grabill,  50  111.,  241. 

C.  R.  I.  & P.  R.  Co.  V.  Caretj,  90  111.,  514. 

Troy  V Cheshire  R.  R.,  12  N.  H.,  83. 

Van  Schoyck  y.  Del.,  etc..  Canal  Co.,  20  N.  J.  L.,  249. 

Heard  v.  Middlesex  Canal  Co.,  5 Mete.,  81. 

The  drainage  water  was  turned  into  the  Des  Plaines  River  Jan- 
uary 17,  1900. 

The  party  who  owned  the  land  then  had  the  right  of  action. 

Upon  the  sale  of  that  ])roperty,  he  sold  it  burdened  with  the 
altered  condition,  ])rodnced  by  the  addition  of  the  drainage  water, — 
which  burden  included  the  burden  of  increased  navigability. 

The  right  of  action  for  the  damages  consecpient  upon  the  improve- 
ment of  navigation  did  pot  i^ass  to  the  grantee.  It  is  a personal 
right  which  is  not  transferable. 

Chicago  £ Alton  R.  R.  v.  Maher,  91  111.,  312. 

Chicago  £ Eastern  III.  Ry.  Co.  v.  Loeh,  118  111.,  203. 

' Galt  V.  Chicago  N.  W.  Ry.  Co.,  157  111.,  125-134. 

City  of  Centralia  v.  Wright,  150  111.,  561. 

Pinkneyville  v.  Ilntchings,  63  111.  App.,  137. 

It  is  admitted  by  the  defendant  that  it  acquired  title  to  the  prop- 
erty on  eacli  side  of  the  river  in  Section  25,  Township  34,  Range  8, 
and  in  Section  36,  Township  34,  Range  8,  to  the  same  extent  that 
it  owns  now,  by  deed  from  Harold  T.  Griswold  on  November  30, 
1906,  being  the  property  on  each  side  of  the  river,  at  the  point 
where  the  dam  was  located. 

And  that  said  Griswold  acquired  the  title  to  said  property  on  each 
side  of  the  liver,  as  trustee  for  5,1  r.  Charles  A.  Munroe  and  Mr. 


94 


Frank  G.  Logan;  and  that  said  Griswold  first  aociiiired  an.  interest 
llioi’oin  l)y  (‘ontraot  \n  tlie  spring  of  tlie  year  1904,  which  interest 
afterwards  ripened  into  title,  and  whicli  title  he  conveyed  to  the 
Fconomy  Light.  & Power  Company,  Noveniher  30,  1906.  (Ahst., 
pp.  1617-8.) 

The  drainage  water  had  been  running  in  the  lies  Plaines  Elver 
over  this  spot  from  January  17,  1900,  to  Noveml)er  80,  1906, — six 
years,  ten  months  and  a half, — when  the  defendant  acquired  its 
title.  Tt  took  title  burdened  with  the  changed  condition  and  im- 
proved navigability  thereby  produced. 

Any  right,  which  the  grantor,  preceding  Griswold,  had,  was  sub- 
ject to  the  public  right,  which  must  be  left  free  and  unobstructed. 

Even  a work  which  might  be  lawful  when  erected,  because  not 
interfering  with  the  public  right  of  navigation  in  its  state  of  devel- 
opment then  existing,  must  give  way  whenever  by  improvement  in 
the  navigability  it  becomes  an  obstruction  to  the  paramount  right 
of  navightion. 

^‘An  owner  who  erects  a structure  in  the  soil  under  the  navi- 
gable water,  does  it  at  his  peril,  and  if  it  becomes  an  obstruc- 
tion to  the  paramount  right  of  navigation,  he  may  be  compelled 
to  remove  it.” 

West  Chicago  St.  R.  R.  Co.  v.  The  People,  214  Ilk,  9,  20. 

Gihson  V.  United  States,  166  U.  S.,  269. 

Holyoke  Water  Poiver  Co.  v.  Conn.  River  Co.,  52  Conn., 
570. 

The  change  in  the  depth  and  volume  of  water  in  the  Des  Plaines 
by  the  addition  of  the  drainage  water  was  a lawful  change,  having 
the  incidental  object  of  improving  the  navigation  of  the  river. 

It  was  made  by  an  expenditure  of  upwards  of  $50,000,000  of 
public  money  raised  by  taxation,  and  was  made  in  pursuance  of  the 
llrainage  Act  and  the  Navigation  Eesolution  of  May  28,  1889. 

An  improvement  of  navigation  was  one  of  the  purposes  for  which 
it  was  made.  Defendant  claims  that  the  river  was  non-navigable 
to  start  with;  that  there  was  no  incidental  purpose  of  improving 
navigation  in  this  expenditure  of  over  $50,000,000  of  public  money; 
and  that,  therefore,  this  water,  when  added  to  the  Des  Plaines  Kiver 
was  abandoned  water,  which  partook  of  the  character  of  the  non- 


iiavigablo,  original  stroani;  and  tlioroi'oi'o,  inahn-  tin*  (iootrfru;  oT 
Dndei/  v.  Adam,  102  III.,  177,  it  txicamc,  part  of  tho  unearned,  in- 
crciiumt  of  the  defendant  by  virtue  of  its  lower  riparian  pro[)ri(‘toi‘- 
sliip. 

The  State  insists  upon  the  contrary  of  this. 

The  State  insists  that  the  purpose  of  improving  navigation  is  set 
forth  in  the  title  and  body  of  the  Drainage  Act,  and  in  the  con- 
current Navigation  Eesolution,  passed  April  28,  1889. 

In  Drnlei)  v.  Adam,  the  Canal  Commissioners  were  taking  lower 
down  the  water  which  had  been  put  into  the  river  higher  up.  Th(« 
waters  had  been  put  in  for  the  purpose  of  improving  navigation, 
and  not  for  the  purpose  of  water  power,  and  the  taking  of  them 
out  was  not  for  the  purpose  of  navigation,  and  was  for  the  pur- 
pose of  water  powder. 

In  the  case  at  bar,  the  waters  were  put  in  for  the  purpose  of  navi- 
gation, and  have  never  been  taken  out,  and  there  was  no  intention 
on  the  part  of  the  State  either  of  taking  them  out,  or  of  letting  any 
one  else  take  them  out. 

In  Drnley  v.  Adam,  this  court  said: 

‘^The  deepening  of  the  Summit  level,  and  the  cntting  of  the 
tunnel,  and  doing  of  the  other  work  enabling  appellant  to  with- 
draw water  from  the  the  canal  to  ])ropel  his  machinery,  were 
not  concurrent  acts,  nor  parts  of  a single  im])rovement.  The 
acts  'll' ere  disconnected  in  point  of  time  and  disconnected  in 
purpose.  Appellant’s  watei*  power  was  obtained  by  him  from 
the  Board  of  Canal  Commissioners  tony  suhsequent  to  the 
deepening  of  the  Summit  level,  and,  for  aught  that  is  disclosed 
in  this  record,  it  ivas  not  even  thought  of  rrhile  that  leorh  was 

ip  progress,  nor  until  some  time  after  its  completion. 

* ' * * * * * 

T1  le  Act  of  April  lb,  1865,  under  which  the  City  of  Chicago 
deepened  the  Summit  level,  discloses  no  such  purpose.  It 
shows  that,  so  far  as  the  City  of  Chicago  'U'cis  concerned,  the 
sole  purpose  was  to  purify  or  cleanse  the  Chicago  Kiver.  It  is 
true,  it  is  therein  shoivn  that  it  was  desirable  to  cut  down  the 
Summit  level,  so  as  to  draw  a large  supply  of  water  from  Lake 
Michigan;  hut  this  was  not  for  motive  power,  hut  is  expresshf 
said,  to  he  ‘for  navigation.’  ” 

The  deep  cut  was  made  to  purify  the  Chicago  Diver,  ^Cind  foi* 
navigation”;  therefore  the  plan  thought  of  long  afterwards  by  the 
Canal  Commissioners  of  diverting  a lot  of  the  water  so  added  and 


soiling  it  out  for  ])rivate  pnrjx)^^^  hhis  held  to  he  not  ivithin  the 
jjurpose  of  the  Act,  (luthonzing  that  addition  to  the  river. 

Tlu'  idea  of  water  ])ower,  to  wliieli  it  was  subsequently  sought 
to  he  devoted,  was  not  even  thouyht  of  until  some  time  after  its 
eompletion. 

But  the  drainage  watei*  was  turned  in  for  the  very  purpose 
of  improving  navigation,  and  the  ])urpose  of  navigation  was  writ 
large  u]:)on  tlie  face  of  tlie  Act,  autliorizing  the  expenditure  of 
])ul)lic  treasure  to  accomplisli  this  beneficent  result. 

The  improvement  of  navigation  was  not  something  ‘Aliscon- 
nected  in  ])oint  of  time  and  disconnected  in  purpose,’’  from  the 
original  Act.  It  was  vitally  connected  from  the  beginning  as  ah 
incidental  and  lawful  purpose  of  the  Draiage  Act. 

People  V.  Nelson,  133  111.,  565. 

The  public  may  lawfully  unite  the  improvement  of  navigation 
with  other  purposes,  and  establish  a public  work  combining  both. 

Kaukauna  Co.  v.  Green  Bay,  etc.,  Canal  Co.,  142  U.  S.,  254. 

Green  Bay  Caned  Co.  v.  Patten  Paper  Co.,  172  U.  S,.  58. 

Stockton  V.  Poivell,  29  Fla.,  1 ; 15  L.  K.  A.,  42. 

The  Sanitary  District  Act  Protected  Existing  Water-Power 
Rights”  Against  Injury  or  Destruction. 

THIS  DID  not  forbid  THE  ADDITION  OF  NAVIGABLE  WATER  TO  THE 

STREAM. 

The  language  of  Section  23  of  the  Act,  after  authorizing  the  con- 
struction of  a channel  causing  the  waters  of  Lake  Michigan  to 
jiass  into  the  Des  Plaines  or  Illinois  Rivers,  through  a channel 
not  less  than  14  feet  deep  in  earth  and  18  feet  deep  in  rock  and 
160  feet  wide  at  the  bottom,  and  making  a continuous  flow  of 
not  less  than  300,000  cubic  feet  of  water  per  minute,  at  a current 
not  exceeding  three  miles  per  hour,  provides : 

‘Mn  case  a channel  is  constructed  in  the  Des  Plaines  River 
as  contemplated  in  this  section,  it  shall  be  carried  down  the 
slope  between  Lockport  and  Joliet  to  the  pool  commonly 
known  as  the  upper  basin,  of  sufficient  width  and  depth 
to  carry  off  the  water  the  channel  shall  bring  down  from 
above. 


97 


“Tli(‘  (listric't  (‘onslnK'lin^-  a (‘lianiu^l  to  (‘an‘v  \val(‘r  I'l-om 
Lake  Miehigaii  of  any  ajnoiint  aulliorizcMl  by  Ibis  Ael  niay 
(*()rre(‘t,  nioaifv  and  remove  obstnudions  in  IIk;  1)(‘s  Llain(*s 
and  Illinois  Rivers  wherever  it  shall  be  necessary  so  to  do 
to  prevent  overflow  or  damage  along  said  river.  * * * 

“And  tlie  C^anal  Commissioners,  if-  they  shall  find  at  any 
time  t]iat  an  additional  sn])ply  of  water  lias  been  added  to 
eitlier  of  said  rivers,  by  any  drainage  district  or  districts, 
to  maintain  a depth  of  not  less  tlian  six  feet  from  any  dam 
owned  ])y  the  State  to  and  into  the  first  lock  of  the  Illinois 
and  Michigan  Canal  at  La  Salle,  without  the  aid  of  any 
such  dam,  at  low  water,  then  it  shall  be  the  duty  of  said 
Canal  Commissioners  to  cause  such  dam  or  dams  to  be  I'e- 
moved. 

‘^This  Act  shall  not  he  construed  to  authorize  the  injury  or 
destruction  of  existing  water-poiver  rights/' 

It  is  plain  from  the  context  that  the  phrase  “existing  water- 
power rights”  in  this  Act  was  intended  to  describe  the  existing 
dam  developing  water-power. 

The  clause  was  inserted  in  the  statute  to  prevent  the  Sanitary 
District,  which  was  authorized  to  remove  ol)structions  from  the 
Des  Plaines  and  Illinois  Rivers,  from  removing,  without  compen- 
sation, such  existing  dam,  and  in  i)articular  Dam  Xo.  1 of  th.e 
Canal  C^ommissioners,  which  was  then  and  there  the  property 
of  the  State. 

But  for  the  insertion  of  this  clause  in  the  statute.  Dam  Xo.  I 
inight  have  been  held  removable  by  agency  of  the  State,  viz:  the 
Sanitary  District,  against  the  will  and  protest  of  the  other,  viz: 
the  Canal  Commissioners,  and  without  compensation. 

“AVhei’e  persons  are  authorized  by  the  legislature  to  per- 
form acts  in  which  the  ])ublic  are  interested,  such  as  grading, 
levying  and  im})roving  streets  and  highways  and  the  like, 
they  are  not  answerable  for  the  consequential  damages  which 
may  l)e  sustained  by  those  who  own  lands  hounded  by  the 
street  or  higliway.” 

Belliuger.Y.  New  York  Central  U.  1C,  23  X".  Y.,  42. 

This  was  decided  in  IBGl  and  s])ecifically  a))plied  in  that  case 
to  the  construction  of  ('iilveits,  embankments  and  bridges  con- 
veying the  defendant’s  railroad  across  West  (himnhi  Creek.  It 
was  one  of  the  cases  mai'king  the  difference  between  injury  and 
damage  and  is  customarily  cited  foi-  the  proposition  that  a woi*k 


98 


aiitli()i'iz(‘(l  by  the  legislature  heeoiiies  a lawful  work  tlierehy;  tliat 
the  ueeessaiy  eoiisecjuouees  of  such  Avork  wlieu  constructed  in  a 
skillful  nianner  are  conseciuential  damages,  hut  are  not  injuries, 
wliil(‘  the  harms  ensuing  from  a rec'kless,  negligent  and  im])roper 
construction  of  the  work  are  hoth  injury  and  damage. 

This  was  the  tliougiit  in  the  mind  of  the  legislature  in  pro- 
viding that 

‘‘This  Act  shall  not  l)e  construed  to  authorize  the  injury 
or  destruction  of  existing  water-power  rights.” 

The  Sanitary  District  should  not  without  compensation  destroy 
Dam  No.  1.  ft  should  not,  hy  negligent  and  improper  construction 
of  its  channel,  harm  Dam  No.  1, 

(As  to  the  doctrine  in  New  York  and  other  States  that 
consequential  damages  from  the  proper  construction  of  a law- 
fully authorized  public  work  are  not  recoverable,  that  was 
changed  in  Illinois  hy  the  constitution  of  1870  providing 
that 

“Private  property  shall  not  he  taken  or  damaged  for  pub- 
lic use  without  just  ccmpensation.” 

Const.  70,  Art.  II,  Sec.  13. 

It  is  not  necessary  to  follow  out  the  various  distinctions 
and  decisions  in  the  cases  before  and  after  1870  between  takr 
ing  and  damaging.) 

The  law  remains  in  Illinois  that  the  individual  or  company 
constructing  works  over  water  courses  pursuant  to  legislative 
authority  is  bound  to  make  suitable  bridges,  culverts  and  works 
for  carrying  off  the  water  effectually  and  keeping  them  in  suit- 
able repair;  so  that  the  works  shall  be  adequate  to  care  for  all  ordi- 
nary conditions. 

It  is  equally  the  law  that  the  person  or  corporation  so  con- 
structing works  and  exercising  such  care,  is  not  liable  for  conse- 
quential damage  caused  by  unusual  conditions. 

Illinois  Cent.  R.  R.  v.  Retliel,  11  311.  App.,  17. 

The  basis  of  this  rule  is  that  the  work  is  antliorized  hy  law  and 
therefore  its  consequences  are  not  injuries  (non  lawful)  so  long  as 
the  work  is  properly  done. 

And  this  is  the  law  everywhere  as  to  works  over  the  waters 
of  the  State.- 

Ohio  Sc.  R.  Co.  V.  Ramey,  139  111.,  9. 


99 


Ohio  dc.  IL  Co.  V.  Webb,  142  III.,  402. 

Ohio  C0C.  n.  Co.  V.  ThilUnan,  '143  III.,  127. 

Monongaliela  Navigation  Co.  v.  Coons,  0 W.  & S.,  101. 

Canal  Co.  v.  Midliner,  68  Pa.  St.,  357. 

Selddn  v.  Delatvare  Canal  Co.,  29  N.  Y.,  634. 

Bnrchardt  v.  Wausau  Boom  Co.,  54  Wis.,  107. 

The  tendency  of  all  the  cases  is  so  to  construe  the  legislative 
authority  a.^  to  hold  the  corporation  exercising  the  public  fran- 
chise to  the  highest  degree  of  care  necessary  to  provide  against 
all  ordinary  foreseeable  harm. 

This  was  the  doctrine  provided  by  the  Drainage  Act. 

^^This  Act  shall  not  be  construed  to  authorize  the  injury 
or  destruction  of  existing  water-power  rights.’^ 

Shall  not  authorize  the  injury,” — that  is,  the  Drainage  Dis- 
trict shall  pay  for  whatever  harm  of  a foreseeable  character  it 
may  do  to  an  existing  water-power  right. 

Shall  not  authorize  the  destruction,” — that  is,  the  Drainage 
District  shall  not,  without  compensation,  tear  down  the  dam  exist- 
ing at  Joliet.  ' 

WHAT  WERE  EXISTING  WATER-POWER  RIGHTs! 

Was  there  an  existing  water-power  right  in  every  detached 
piece  of  ri]iarian  ])roperty  for  every  foot  of  the  lianks  throughout 
the  entire  length  of  the  Des  Plaines  and  rilinois  Pivers,  which  the 
Act  forbade  the  Drainage  District  to  make  any  manner  of  change 
in  or  interferen(*e  with? 

If  so,  then  the  Act  defeated  itself  and  no  Sanitary  Dis- 
trict channel  and  navigable  stream  could  ever  be  constructed 
under  it. 

It  plainly  did  not  mean  this. 

Why  was  the  word  existing  ynit  into  the  phrase  ‘‘existing  icater- 
poicer  right sf^’ 

Plainly  to  distinguish  water-power  rights  now  existing,  in  the 
sense  that  they  are  in  present  use  and  enjoyment,  from  inchoate, 
undeveloped,  unused,  possible  rights  by  owners  on  one  side  or  the 
other  of  the  stream  to  unite  in  creating  a water-power  herewith. 


100 


'riier(‘foro  thei*e  was  no  axistliig  water-power  ri^lit”  in  the  de- 
la(‘lie(l  parcel  on  one  side  of  the  stream  within  the  Drainage  Act. 

( If  this  plirase  in  the  statute  existing  water-power  riglits'’ 
('overed  tlie  jjossihle  future  water-power  develoimient  to  be 
made  hereafter  by  uniting  witli  owners  on  tlie  other  side  of 
the  stream: — then  something  else  follows,  viz:  that  the  flowage 
(‘ontracts  and  leases  in  this  case  constituted  a water-power 
lease. 

The  language  of  the  canal  act  is  nmch  broader.  It  author- 
izes the  Chmimissioners  'Do  lease  from  time  to  time  to 'the 
highest  bidder  therefor  any  irntcr-porrer/'  etc. 

(H.  S.  Ch.  19,  Sec.  8,  Cl.  6.) 

"Any  water  ])ower”  in  this  statute  is  nmch  more  compre- 
hensive than  "existing  wnter-])ower  rights”  in  the  Drainage 
Act.) 

There  was,  in  fact,  no  existing  water-power  developed  at  the 
site  of  this  dam  at  the  time  of  the  passage  of  that  Act  and  the 
pro])erty  on  tlie  different  sides  of  the  stream  was  in  the  hands  of 
different  owners  from  a time  before  the  Drainage  Act  was  passed 
until  after  the  drainage  water  was  turned  in. 

By  the  phrase  "existing  water-power  rights”  the  legislature 
])lainly  had  two  objects  in  view: 

First,  they  intended  to  m-otect  actual  existing  water  powers  such 
as  were  created  by  Dam  No.  1 against  uncompensated  harm  such 
as  prior  to  the  constitution  of  1870  were  held  to  be  mere  consequen- 
tial damages  for  which  no  recovery  could  be  had.  They  were  leg- 
islating to  carry  into  effect  the  provision  in  the  constitution  that 
property  shall  not  be  taken  or  damaged  for  public  use  without 
compensation.  They  irere  making  the  Act  conform  to  the  consti- 
tution. 

In  using  the  phrase  ^ Existing  water-power  rights,”  they  in- 
tended to  prevent  claims  for  compensation  for  water  which  was 
not  there  in  the  stream  at  the  time  the  Act  was  passed.  The 
Act  contemplated  the  turning  of  300,000  cubic  feet  per  minute 
and  more  of  water  into  the  stream  at  public  cost.  The  legisla- 
ture plainly  intended  that  the  pubic  should  not  first  pay  the  cost 
of  turning  the  water  in  and  then  pay  the  riparian  owner  for 
getting  the  use  of  it  back.  ‘‘Existing  mater-power  rights”  were 
to  be  compensated  for  so  far  as  the  work  authorized  by  the  Act 


101 


might  iiitorrero  with  tliem  and  only  ^‘existing  watcn-  powcn*  rights 
wore  to  he  so  eoinpensated  for.” 

Tliese  were  the  reasons  why  the  legislatni'e  industriously  and 
deliberately  used  the  word  ‘‘existing”  in  defining  the  eharaet(‘r  ot‘ 
tlie  water-power  right  whieh  tliey  intended  to  ])roteet. 

The  ^‘existing  water-])ower  right”  was  the  right  in  the  owner 
at  tlie-  time  the  aet  authorized  to  be  done  slionld  be  performed. 
TTie  aet  authorized  to  be  done  was  the  turning  in  of  tlie  drainage 
water  and  that  was  done  January  17,  1900.  The  existing  water- 
power  right  was  the  right  existing  in  the  man  who  owned  the 
property  January  17,  1900.  He  was  given  his  remedy. 

When  that  owner  sold  the  property  at  any  time  after  that  date, 
he  sold  it  burdened  with  the  altered  condition  and  the  grantee 
took  it  in  its  altered  condition  with  the  burden  attached. 

Chicago ' & Alton  R.  Co.  v.  Maher,  91  111.,  312. 

Chicago  S Eastern  Illinois  R.  Co.  v.  Loeb,  118  111.,  203. 

Missouri  V.  Illinois  and  Sanitary  List,  of  Chicago,  200 
U.  S.,  pp.  490  and  526. 

Troy  V.  Cheshire  R.  Co.,  12  N.  H.,  83. 

The  varying  facts  that  one  owner  got  his  compensation  before 
selling  to  Munroe while  another  one  brought  suit  for  it,  which 
is  still  ])ending,  and  then  sold  to  Munroe; — or  composed  his  differ- 
ences with  the  Sanitary  District  and  was  ])aid  in  cash  his  compen- 
sation and  then  sold  to  Munroe; — or  let  it  go  without  taking  any 
conpiensation,  ti'eating  that  as  a negligible  fador  (and  each  of 
these  hai)pened  as  to  some  part  of  the  property) — would  none  of 
them  constitute  either  any  breach  of  the  statute  or  confer  any  right 
upon  Munroe  or  nt)on  Munroe ’s  subsecpient  grantee. 

At  most  the  recovery  for  such  damages  must  be  sought  within 
five  years  after  the  cause  of  action  accrued  (E.  S.,  p.  83,  Sec.  15). 
The  water  was  turned  in  January  17,  1900,  and  the  defendant 
bought  October  30,  1906,  long  after  any  reinedy  for  the  perma- 
nent alteration  in  the  face  of  nature  had  been  barred  by  the  stat- 
ute. 


102 


THE  IMiOl’OSEI)  (.’ANALS  AKOUND  THE  TWO  DAMS.* 

The  suggestioii  in  tlie  j-eport  of  tlie  U.  S.  Engineers  for  1904-5 
of  a (‘anal  three  miles  long  around  tlie  swift  spot  at  Jefferson 
street  bridge,  12  miles  aliove  the  site  of  this  dam;  and  another 
eanal  three  miles  long  at  Marseilles  around  the  (jrand  Kapids  of 
the  Illinois  and  the  Marseilles  Dam,  at  a point  50  miles  west 
of  this  i)oint  and  on  the  Illinois  Diver  did  not  emanate  merely 
from  snp])Osed  difficrdties  in  navigation.  Th.e  report  itself  shows 
this,  under  the  general  head  of  ^‘Vested  Eights,”  (Hep.,  p]). 
11-12).  The  Ernst  Board  of  Engineers  say: 

”The  stee])  slope  of  the  Des  Plaines  Hiver  and  of  the  Illi- 
nois Hiver  abo\  e Utica  is  favorable  to  the  development  of 
wmter  power.  Eights  of  this  nature  have  accjiiired  additional 
importance  wdtii  the  recent  increase  in  the  discharge  of  the 
drainage  canal,  and  will  acquire  still  further  imi^ortance  with 
the  further  increase  contemplated.  An  important  water 
power  has  been  developed  hy  the  State  of  Illinois  at  Joliet 
and  is  now  in  use  under  lease  by  a private  corporation.  The 
Sanitary  District  of  Chicago  is  engaged  in  the  construction 
of  works  for  the  development  of  water  power  just  above 
Joliet.  An  important  water  power  is  in  use  also  at  Mar- 
seilles. Various  other  schemes  for  the  development  of  water 
power  have  been  projected.  In  all  such  cases  fixed  dams,  with 
their  resultant  back  flowage,  are  a necessity.  In  fixing  the 
location  and  height  of  its  dams  the  Board  has  endeavored 
to  avoid  the  injury  of  any  of  these  schemes.  It  has  suc- 
ceeded in  doing  this  for  all  that  are  developed  and  probably 
also  for  those  that  are  undevelo])ed.  It  has  accepted  the 
levels  of  the  pools  at  and  above  Joliet  as  fixed  by  the  dam 
now  in  existence  at  the  former  and  that  under  construction 
at  the  latter;  and  at  Marseilles  the  canal  around  the  rapids 
has  enabled  it  to  avoid  the  power  dam  at  that  place  entirely. 
At  other  places  economy  in  excavation  and  avoidance  of 
overflow  have  been  the  guiding  considerations.  The  best 
development  of  wmter  power  would  no  doubt  in  some  cases  call 
for  a different  arrangement.  Fewer  dams  and  those  of  a 
greater  height  and  of  the  fixed  type  might,  from  that  point  of 
view,  be  desirable.  The  plan  submitted  is  not  designed  to 
develop  water  power,  but  there  will  probably  be  no  diffi- 
culty in  modifying  it  so  as  to  conform  to  such  development 
if  those  who  are  to  benefit  thereby  will  co-operate  with  the 
Government.  They  shoujd  pay  the  cost  of  the  dams  and  the 
damages  from  flowage,  which  is  no  more  than  they  would 
be  compelled  to  do  if  the  Government  made  no  improve- 
ment.” ^ 


lo:} 

The  (lereiulaiit  })iii  iliai  passages  in  (‘videnec;  and  allacli(;d  grcial 
iinportaiu'e  to  it.  It  is  in  brief  a staicnncnit  that  i-ights  in  (existing 
water  power  dams,  whicdi  were  of  niod(n*at(;  valiui  hefor(‘  the 
turning-  in  of  tlie  Drainage  water  ^Miave  ae(iiiired  additional  ini- 
jxn'tanee  witli  tl^e  recent  increase  in  tlie  di.'cliarge  of  the  Drain- 
age Canal;”  and  tlie  defendant  asserts  tha:  this  addition  to  the 
river  of  the  Driiinage  Water  in  iin  addition  to  its  private  existing 
water  power  right, — invoking  Druleij  v.  Adam  therefor. 

Our  reply  to  this,  as  appears  elsewhere,  is  that  in  Druley  v. 
Adam  the  court  found  that  the  water  added  by  the  Deep  Cut  had 
not  been  added  for  water  power  purposes,  and  therefore  the 
Canal  Commissioners  could  not  take  that  water  and  sell  it  for 
water  power,  for  which  it  had  not  been  designed;  while,  as  to 
the  Drainage  water,  it  was  added  for  navigation  purposes  as  well 
as  for  drainage.  Navigation  was  writ  large  upon  the  face  of  the 
Joint  Kesolution  and  Sanitary  District  Act;  and  that  therefore, 
this  Sanitary  District  water  so  added  to  the  river  was  impressed 
with  ])ublic  uses  for  navgation  before  it  was  added  and  before 
tlie  channel  was  dug;  and  it  carried  with  it  its  public  uses  of 
navigation  into  the  navigable  Des  Plaines,  and  cannot  be  taken  for 
water  power  without  the  assent  of  the  State. 

But  our  ])urpose  now  in  calling  attention  to  this  clause  in  the 
re])ort  is  to  show  that  the  ])rop()sal  for  a canal  three  miles  long 
around  the  Marseilles  .Dam  and  another  three  miles  long  around 
the  steep  spot  in  Joliet  and  Dam  No.  1, — is  itself  in  i)art  ins])ired 
hy  the  desire  u])on  the  ])art  of  the  Government  Board  of  Plngineers 
to  avoid  injuring  those  two  dams;  and  to  avoid  the  possible  ex- 
pense to  the  United  States  Government  iiH'idental  to  interfering 
with  those  two  dams.  The  two  spots  where  the  engineers  pro])ose 
a short  canal  three  miles  long  in  each  si)ot  are  the  two  spots  where 
there  are  two  dams.  They  would  go  around  the  two  dams, — 
partly  because  there  is  a swift  current  tliere,  and  partly  liecause 
there  is  a ‘Aested  right”  in  an  existing  water  power  there.  They 
would  not  go  around  the  rest  of  the  river,  because  there  is  no 
existing  water  i)ower  anywhere  else, — and  that  is  true  of  Dresden 
TTei  gilts. 


104 


XT. 

'11  IF.  NAVKiA'I'lON  CI.AUSF  OF  THE  OHDINANCE  OF  1787,  AND  THE  STATUTES 
IN  KF-FNA(ri’MEN  r AND  CONFIRMATION  THEREOF,  DEDK’ATED  AND  PRE- 
SERVED THE  DES  Pl.ATNES  RIVER  AS  A HIGHWAY. 

1. 

SUMMARY^  OF  LEGISLATION  AND  ACTION. 

Ordinance  of  1787,  Sec.  14,  Art.  IV,  U.  S.  H.  S.,  2 Ed.,  1878,  p.  13. 
1 Starr  & Chirtis,  2 Ed.,  ]>.  42. 

Act  of  Congress  August  7,  1789,  entitled: 

“An  Act  to  provide  for  the  (jovernment  of  the  Territory 
Northwest  of  the  River  Ohio.” 

I IT.  S.  Stat.  at  L.,  p.  50. 


77.95,  Dec.  7 — Treaty  of  Greenville  ceding  right  of  free  passage 
hy  land  and  water 

“from  tlie  month  of  the  Chicago  to  the  commencement  of  the 
portage  lietween  that  river  and  the  Illinois  and  down  the  Illi- 
nois River  to  the  Mississippi.” 

1 Am.  St.  Papers,  V ol.  IV,  Chap.  2,  Indian  Affairs,  Vol.  I. 

2796,  May  18 — Act  of  Congress  providing  for  sale  of  lands  in 
Northwest  Territory.  Sec.  9.  All  navigable  rivers  within  the  ter- 
ritory to  he  dis])osed  of  hy  virtue  of  this  act  shall  he  deemed  to  he 
and  remain  public  highways. 

1 Stat.  at  L.,  Chap.  29,  p.  468. 

180i,  March  26 — Act  of  Congress  making  jirovision  for  the  dis- 
posal of  the  public  lands  in  Indiana  Territory. 

Sec.  6.  All  the  navigable  rivers,  creeks  and  waters  within  the 
Indiana  Territory  shall  be  deemed  to  he  and  remain  public  high- 
ways. 

2 U.  S.  Stat  at  L.,  Chap.  35,  p.  279. 

ISO!),  Eel).  3 — “Act  for  dividing  Indiana  Territory  into  two  sepa- 
rate governments. 

Sec.  2.  The  inhabitants  thereof  shall  he  entitled  to  and  enjoy 


105 


all  and  siiii>iilai'  the  rights,  privih'gc's  and  advanlag(*s  gfant(nl  and 
stviired  to  the  |)eoi)le  ot*  the  Territory  ol‘  tlie  lJnit(‘d  States  North- 
west of  the  River  Ohio  by  tlie  said  ( )rdinan(*e. ” 

2 U.  S.  Stat.  at  L.,  p.  514. 

1 Starr  & Curtis,  2 Ed.,  p.  40. 

IS^G.  The  Pottawattoinie  Treaty  of  Black  Partridge  ceded  to 
tlie  United  States  a tract  of  land  ten  miles  wide  on  each  side  of  the 
Des  Plaines. 

7 IT.  S.  Stat.  at  L.,  p.  146. 

(This  is  the  first  official  use  of  the  name  Des  Plaines.) 

1818,  April  IS^The  enabling  act  for  admission  of  Illinois. 

3 U.  S.  Stat  at  L.,  p.  428. 

Sec.  4.  ‘‘The  same  whenever  formed  shall  be  re]mblican  and 

not  repugnant  to  the  Ordinance  of  the  13th  of  July,  1787 
* * * ? > 

1 S.  & C.,  2 Ed.,  p.  51. 

1818,  Aug.  26 — Constitution  of  Illinois.  Preamble.  The  people 
of  the  Illinois  Territory  having  the  right  of  admission  into  the 
general  government  as  a member  of  the  Union  consistent  with  the 
Constitution  of  the  United  States,  the  Ordinance  of  Congress. of 
1787,  etc.  * do  * * ordain  and  establish  the  following 

constitution. 

1 S.  (S:  C.,  2 Ed.,  p.  55. 

1818,  Dec.  3 — Resolution  of  Congress  of  Illinois  by  its  new  con- 
stitution “which  constitution  and  State  government  so  formed  is 
republican  and  in  conformity  to  the  ])rin(*iples  of  the  articles  of 
compact  between  the  Original  States  and  the  ])eople  and  States  in 
the  Territory  noilliwest  of  the  River  Ohio  jiassed  duly  13,  1787.” 

3 U.  S.  Stat.  at  L.,  p.  536. 

18‘i8,  Dec.  4 — Message  of  Governor  Duncan  to  Illinois  Legisla- 
ture quotes  the  Ordinance,  Sec.  14,  Art.  IV,  and  says: 

“Those  two  rivers,  the  Wabash  and  Illinois,  are  recognized 
to  be  the  waters  alluded  to.^’ 

111.  Senate  Journal, '1838-9,  p.  12;  Abst.,  p.  1066. 


Use  of  tlie  Dos  Plaines  and  Illinois  prior  to  the  ado])tion  of  this 
Oi’dinaiK'e  and  sn))se(inently.  See  Division  I Ilistorieal  Proofs 
assend)led.' 

77/e  MoufeUo,  20  Wall.,  420 — opinion  by  Mr.  Justice  Davis. 

2. 

THE  ORDINANCE  AND  THE  HEGTSLATTON  IN  CONFIRMATION  THEREOF  MUST 
BE  CONSTRUED  ACCORDING  TO  ITS  HISTORY  AND  INTERPRETED  ACCORD- 
ING TO  THE  MEANINGS  THEN  GIVEN  ITS  TERMS. 

Board  of  Works  v.  The  United  Telephone  Co.,  13  Q.  B.  D., 
914. 

A rented  Bread  Company  v.  Gregg,  L.  K.,  8 (^.  B.,  355. 
Massey  v.  Dunlop,  146  Ind.,  358. 

Sharp  V.  Wakefield,  22  Q.  B.  1).,  242. 

Gaslight,  etc.,  Co.  v.  Hardy,  17  Q.  B.  1).,  621. 

Grisirold  v.  Atlantic  Dock  Co.,  21  Barb.  (N.  Y.),  228. 
Mobile  V.  Eslava,  16  Pet.  (IT.  S.),  234. 

Ponchartrain  B.  Co.  v.  Lafayette^  etc.,  B.  Co.,  10  La.  Ann., 
741. 

Morris  Canal,  etc.,  Co.  v.  State,  24  X.  J.  L.,  62. 
Commonwealth  v.  Erie,  etc.,  B.  Co.,  27  Pa.  St.,  353. 

People  V.  Hinrichsen , 161  111.,  223. 

State  V.  Atlantic  City,  56  X.  J.  L.,  232. 

THE  HISTORY  OF  TFIE  TIMES  WHEN  THE  ACT  WAS  PASSED^  THE  SITUATION 
OF  THE  COUNTRY  AT  THE  TIME  OF  THE  PASSAGE,  AND  CONTEMPO-  , 
RANEOUS  EVENTS  AND  CIRCUMSTANCES  WITHIN  THE  VIEW  AND  ATTEN- 
TION OF  THE  LEGISLATURE  SHOULD  BE  CONSIDERED  IN  GIVING  INTER- 
PRETATION TO  THE  STATUTE. 

U.  S.  V.  Union  Pack.  Co.,  91  U.  S.,  72. 

U.  S.  V.  Wilson,  58  Fed.,  768. 

Holy  Trinity  Church  v.  U.  S.,  143  U.  S.,  457,  at  463  et  seep 
U.  S.  V.  Oregon,  etc.,  B.  Co.,  57  Fed.,  426. 

State  ex  rel.  v.  No.  Pac.  B.  Co.,  30  La.  Ann.,  980. 

Keyport,  etc..  Steamboat  Co.  v.  Banners’  T.  Co.,  18  X.  J. 
Eq.,  13. 

Fairchild  v.  Givynne,  16  Abb.  Pr.,  23. 

Story  V.  N.  Y.  E.  B.  Co.,  3 Al)b.,  new  cas.,  478. 


107 


And  it  is  dhodeii  to  consideh  the  whole  oe  'imie  si'M  iJ^rE  and  the 

I’HEAMBl.E  AND  J’HOBABI.E  INTENTION  OE  THE  LEOIST.ATIJHE. 

Holbrook  V.  Holbrook,  18  Mass.  (1  Pick.),  248. 

(Act  of  1708  oil  ])laii  for  city.) 

Furman  v.  Citi^  of  N.  Y 5 Sandf.,  lO. 

Ferrif  Co.  v.  Jefferson  Co.,  04  111.,  214. 

People  V.  Fidelity  d Casualty  Co.,  153  111.,  25,  at  35. 
Cruse  V.  Aden,  127  111.,  231. 

Steamboat  navigation  was  not  invented  until  twenty  years  after 
the  passage  of  that  Ordinance. 

Internal  navigation  at  that  time  was  by  batteanx,  Durham  boats, 
Mackinaw  boats  and  canoes. 

1807,  Ang.  7 & 8 — Robert  Fulton  made  the  first  steamboat  voyage. 

The  change  in  the  art  of  navigation  twenty  years  after  the 
Ordinance  was  passed  did  not  change  the  meaning  of  the  Ordi- 
nance. 


3. 

The  Ordinance  has  a triple  aspect: — 

1.  It  is  a dedication  of  the  stream  as  a highway  by  the  United 
States  of  America,  which  was  the  })roprietor  of  the  stream. 

It  owned  the  entire  area  by  deed  from  Virginia  which  owned  it 
by  coiKjuest  made  by  George  Rogers  (Mark. 

2.  The  Ordinance  is  a compact  among  the  States  respecting  the 
use  of  that  highway  and  solemnly  agreeing  that  the  highwa}^  shall 
forever  be  ju'eserved. 

It  is  on  the  same  footing  as  the  compact  between  Virginia  and 
Ohio  which  was  enforced  by  the  Supreme  Court  in  the  AVheeJing 
Bridge  case,  13  Ho^.,  p.  518. 

3.  It  is  a ])iece  of  legislation  enacting  a law  that  this  highway 
shall  forever  be  preserved. 

The  attem])ts  to  get  rid  of  (2)  the  compact  and  (3)  the  leyisla- 
iion,  leave  in  full  force  and  effect  (1)  the  dedication  of  the  high- 
way. 


108 


4. 

tiil:  failure  of  tfif  contentions  contra  to  reach  the  subject. 

1.  'l1io  OrdinaiiRo  was  re-enacted  by  a Congress  August  7,  1789, 
l)y  the  act  ])assed  ^Mn  order  tliat  the  Ordinance  may  continue  to 
have  full  effect”  by  the  Treaty  of  1795  and  ])y  the  acts  of  1796  and 
1804  ex])ress]y  estalilishing  and  preserving  the  water  highway. 

2.  liven  if  the  Ordinance  were  not  binding  on  Illinois  and  Illi- 
nois liad  the  ])ower  to  repudiate  it,  its  effect  as  the  dedication  of  a 
highway  l)y  the  proprietor  would  remain  until  it  was  expressly 
repudiated  and  that  has  never  occurred.  Illinois  has  never  vacated 
the  dedication. 


5. 

The  cases  in  the  supreme  court  of  the  united  states  relied  on 

AS  ADVERSE  TO  THE  ORDINANCE  AROSE  DURING  THE  ANTI-SLAVERY  CON- 
FLICT AND  WERE  INSPIRED  BY  THE  PURPOSE  OF  ABROGATING  THE  ANTI- 
SLAVERY  CLAUSE  OF  THE  ORDINANCE, 

So  far  as  they  touch  the  navigation  clause  they  consist  of  cases 
concerning  bridges  and  dams  authorized  by  State  legislation  and 
which  the  court  says  are  not  forbidden  by  the  Ordinance. 

All  else  in  those  cases  is  extra  judicial  in  origin. 

6. 

The  contentions  contra  reviewed. 

First  contention  contra : 

That  the  Ordinance  is  not  binding  because  Illinois  was  admitted 
on  an  ecpiality  with  the  Original  States  and  so  could  not  be  bound 
by  a compact  not  applying  to  the  Original  States. 

Ileply : 

1 . The  Original  States  themselves  were  bound  by  the  Ordinance 
the  same  as  the  new  territory.  Therefore  ‘‘equality”  is  pre- 
served. It  was  a regulation  of  commerce  and  “therefore  as 
binding  on  the  other  States  as  on  Alabama.”  (3  How.,  212.) 

2.  Exact  and  literal  equality  was  not  intended  and  is  impossible.- 


109 


Equality  and  rank  and  S()ver(‘i.i>’nty  is  inicnidcMl  and  is  not  innoin- 
patihle  with  the  navigation  (‘laiise  oi*  the  ()rdinan(‘(;. 

1 iMehean,  d-tddUO. 

Second  contention  contra. 

That  the  Ordinance  does  not  bind  Illinois  ])ecanse  it  was  not 
voluntarily  adopted  by  her  after  she  became  a State  in  the  Union. 
Eeply : 

1.  This  assumes  that  the  Ordinance  had  ceased  to  be  binding, 
which  is  a begging  of  the  question. 

2.  The  enabling  act  required  that  the  new  State  constitution 
should  be  not  repugnant  to  the  Ordinance  of  1787,  and  the  new 
constitution  recited  that  the  jjeople  ^Oiaving  the  right  of  admission 
consistent  with  the  Ordinance  of  1787  ordain  the  following  con- 
stitution.” And  the  resolution  of  December  3,  1818,  by  Congress 
recites  that  the  constitution  is  ^Cn  conformity  to  the  principles” 
of  the  Ordinance.  This*  is  a voluntary  adoption  by  the  State  and 
a ratification  by  Congress. 

3.  The  State  in  its  earliest  decision  on  the  navigation  clans, e 
expressly  decided  that  it  was  in  force.  This  was  a declaration  of 
its  law  and  policy  and  made  the  law  for  the  State  on  the  subject. 

People  V.  City  of  St.  Louis,  5 Oilin.,  351. 

The  Court  there  said: 

‘‘This  guaranty  (of  the  Ordinance)  of  rights  to  the  citi- 
zens of  other  States  although  made  before  the  creation  of 
any  of  the  States  through  or  between  which  it  flows,  may  he 
construed  precisely  as  if  it  ive're  a^  grant  made  subsequent  to 
or  at  the  time  of  their  formation.’' 

Third  contention  contra: 

That  the  Ordinance  was  passed  by  the  old  congress  of  the 
Confederation  wliicli  ceased  to  exist;  that  it  wns  not  an  act  of  the 
y)resent  congress  and  of  the  Constitution  of  1789  and  therefore  has 
no  vitality. 

Reply: 

1.  The  a(‘t  of  August  7,  1789,  “In  ordei*  that  the  Ordinance 
may  continue  to  have  full  effect,”  was  by  the  new  Congress.  (IT.  S. 
1 St.  at  L.,  p.  50.) 


110 


2.  The  Treaty  of  (ireeiiville,  the  act  of  May  18,  1790,  and  the 
Act  of  Marcli  20,  1804,  declaring  that  all  the  streams  in  the  Terri- 
tory should  remain  public  higliways  and  providing  for  the  sale  of 
the  lands  on  that  basis,  were  Acts  of  the  new  Congress. 

M.  The  Act  of  Fe])ruary  3,  1809,  setting  aside  the  Illinois  Terri- 
tory and  ])roviding  that  its  inhalhtants  shall  he  entitled  to  and 
enjoy  all  the  rights,  privileges  and  advantages  secured  by  said 
Ordinance”  is  a reaffirmation  of  it  by  the  new  Congress.  (2  U. 
S.  St.  at  L.,  514;  1 Starr  & Curtis,  2 Ed.,  49.) 

4.  These  were  Acts  regulating  interstate  commerce.  They 
were  Acts  by  the  new  government  dealing  with  its  own  property. 
And  they  were  acts  in  the  exercise  of  the  power  conferred  by  the 
United  States  Constitution,  Article  4,  Sec.  3,  Clause  2,  viz:  ^^The 
Congress  shall  have  power  to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  the  territory  or  other  property 
belonging  to  the  United  States.”  (1  Stari;  & Curtis,  2 Ed.,  p.  34.) 

5.  No  political  change  in  the  government  annuls  its  valid  exist- 
ing compacts. 

1 McLean,  345. 

This  is  universally  true  as  a rule  of  public  law. 

Hall  International  Law,  3d  Ed.,  p.  96. 

Woolsey  International  Law,  Sec.  38. 

And  it  is  the  law  of  the  United  States. 

1 AVharton’s  International  Law  Dig.,  Sec.  137. 

1 Moore’s  International  Law  Digest,  Sec.  96. 

7. 

KEVIEW  OF  ILLINOIS  CASES  ON  THE  ORDINANCE  OF  1787. 

EARLY  SLAVERY  CASES. 

1828  Phoebe  v.  Jay,  1 111.  (Beecher’s  Breese),  268. 

‘‘The  ordinance  is  no  doubt  still  binding  upon  the  people 
of  this  State  unless  it  has  been  abrogated  by  common  con- 
sent. ’ ’ 

Territorial  legislation  and  provision  in  Constitution  of  1818  on 
servants  held  such  common  consent  as  to  the  slavery  clause. 


Ill 


This  is  roaflirined  in  tlio  fol lowing’ : 

18dh  Ndiicc  V.  lloH'did,  Ibid.,  242. 

182()  Choisscy  v.  Ilargydve,  1 Seam.,  217. 

18o()  lu)()}/  V.  duliet,  1 Seam.,  217. 

1842  Sdrdh  v.  Boydets,  4 Seam.,  241. 

Fourth  eontention  eontra: 

It  lias  been  held  that  the  ordinanee  did  not  forbid  physical  ob- 
strnetions.”  This  dam  is  only  a physical  obstruction.  Therefore 
it  is  not  forbidden  by  the  Ordinance. 

Keply — What  was  held  in  respect  to  physical  obstructions  was 
that  the  Ordinance  did  not  forbid  the  States  from  authorizing 
physical  obstructions. 

It  declared  the  highway  ‘^insured  a highway  equally  open  to 
all,  without  preference  to  any,” — and  it  left  the  matter  of  physical 
obstructions  to  be  (a)  authorized,  (b)  forbidden  and  (c)  prose- 
cuted and  (d)  policed  by  the  State. 

This  dam  is  a physical  obstruction  which  is  not  authorized  by 
the  State;  and  the  State  is  prosecuting  its  remedy  against  the 
same  by  this  suit. 

See  Review  of  Federal  Cases,  infra. 

See  Life  of  Edward  Coles,  second  Governor  of  Illinois,  by  E. 
B.  Washburne  (Chicago,  Jansen,  McClurg  & Co.,  1882)  and  His- 
tory of  the  Ordinance  of  1787  by  Governor  (^oles,  Phila.,  1856. 

8. 

EARLY  ILLINOIS  CASES  ON  THE  ORDINANCE  OF  1787  OTHER  THAN  SLAVERY 
CASES  AND  OTHER  THAN  NAVIGATION  CASES. 

1822  Acldess  v.  Seekright,  Beecher’s  Breese,  p.  76. 

Ordinance  applied  and  enforced  as  to  a territorial  will. 

1837  McConnell  v.  Wilcox, 

Ordinance  treated  as  binding  in  land  title  cases  of  Beaubien  to 
site  of  Ft.  Dearborn  and  held  not  violated  by  Illinois  legislation. 

McConnell  v.  Wilcox,  1 Scam.,  344,  at  375-7. 

1841  Fenny  v.  Little,  3 Scam.,  301. 


111> 


Ijaiulloyd’s  Rlglit  to  Distrain  Jlcld  Preserved  hij  the  Ordinance 
of  1787  and  Therefore  to  be  Laiv  in  Illinois  in  ]841. 

18()8  McM'urphy  v.  Doyles,  49  ill.,  110  (Ijawrence^  J.). 

10-()visi()]i  of  tlio  Oi'diiiaiiee  on  Avidow’s  ,sbai*e  of  personal  estate 
held  in  fovee. 

1879  People  ex  rel.  McCrea,  Collector,  v.  U.  S.  of  America,  93 
111.,  30. 

Kxein])tion  of  federal  property  from  State  taxation  contained 
in  the  Ordinance  and  considered.  The  exemption  found  to  exist 
on  other  grounds. 

9. 

XAVIOATION  CASES  UNDER  THE  ORDINANCE  OF  1787  IN  ILLINOIS. 

1848  People  v.  City  of  St.  Louis,  5 Gilm.,  351. 

Ordinance  held  in  force  in  Illinois  and  adequate  to  pro- 
tect the  tilling  u|)  of  the  narrow  eastern  channel  of  the 
Mississippi  between  Bloody  Island  and  the  Illinois  shore. 
1865  Illinois  Diver  Packet  Co.  v.  Peoria  Bridge  Assn.,  38  111., 
467. 

Ordinance  cited  and  interpeted  by  Breese,  J.,  concluding: 

‘Ot  is  unnecessary  to  decide  the  question  whether  this 
Ordinance  is  in  force  or  not.” 

1869  City  of  Chicago  v.  McGinn,,  51  111.,  266. 

Bridge  ordinance  of  City  of  Chicago  held  not  a violation  of 
the  ordinance. 

Ordinance  held  to  prohibit  tax  or  duty  or  total  obstruc- 
tion by  a dam. 

10. 

RECENT  ILLINOIS  CASES  UPON  THE  ORDINANCE  OF  1787. 

1895  People  v.  Thompson,  155  111.,  451. 

The  apportionment  act  of  June  15,  1893,  for.  senatorial  dis- 
tricts held  ATilid.  The  apportionment  clause  of  the  Ordinance 
of  1787  lield  not  in  force  in  1893. 

(The  Ordinance  expressly  ])rovided  by  its  own  terms  that 
some  of  its  provisions  should  be  tenqiorary  and  some  perma- 
nent. The  provision  on  proportional  representation  Avas  sub- 


je(‘t  to  llio  riii‘ili(‘r  provision  Hint  lli(‘  iinnilxn-  of  r(ipr(iS(*nta- 
tivos  sliall  anionnt  to  2;"),  after  which  the  naiHher  and  propor- 
tion of  representatives  shall  he  rcfjnlated  hp  the  lepislatiire. 
It  nocossarily  followed  tliat  tlie  early  clause  was  not  in  forc(^) 

1897'  Dixon  v.  The  People,  168  111.,  179,  liolds  that  the  clauses 
on  forming  the  tem])orary  bill  of  riglits  in  the  Ordinance  are 
not  in  force,  and  finally  says: 

^^Tlie  Ordinance  of  1787  is  not  in  force  in  the  State  of 
Illinois.’^ 

This  expression  was  inadvertent  repetition  or  quotation 
from  some  Federal  cases. 

The  old  bill  of  rights  had  been 

^dibrogated  by  common  consent  and  the  new  bill  of  rights 
had  tajken  its  place.  They  are  almost  identical  in  word- 
ing and  are  identical  in  meaning  and  the  Constitution  on 
this  subject  was  a re-enactment  of  the  Ordinance.’^ 

11. 

FEDERAL  CASES  ON  TPIE  ORDINANCE  OF  1787. 

1838  Spooner  v.  McConnell,  1 McLean,  337;  22  Fed.  Cas.  No. 

13245. 

Injunction  to  prevent  Ohio  Canal  Commissioners  from  dam- 
ming, and  using  water  of,  the  Maumee.  Ordinance  specifically 
held  to  be  in  force. 

1843  Palmer  v.  Commissioners  of  Cupahoaa  County,  3 MevLean, 

226;  18  Fed.  Cas.,  10688. 

Decision  in  Spooner  case  reaffirmed.  Drawbridge  held  no 
violation. 

1845  Permoli  v.  Jst  Miniicipality,  3 How.,  589,  holds  by  dictum 
Ordinance  of  1787  inoperative  in  consecpience  of  the  admis- 
sion of  new  State  on  ecpial  footing  with  original  States. 

Note: — This  decision  related  to  territory  outside  the 
original  Northwest  Teriltory,  viz:  of  Louisiana,  and  was 
hy  its  terms  not  aiiplied  to  the  Northwest  Territory* or 
States  carved  therefrom. 

It  construed  the  act  of  1805,  Chap.  83,  which  secured  to 
the  inhabitants  of  Louisiana  the  benefits  of  the  Ordinance. 

The  case  turned  on  the  clause  concerning  the  free  exercise 
of  religion  (Article  I of  the  Ordinance;  1 Starr  & Curtis,  2 


114 


]).  44)  and  t(‘st(‘d  the  validity  of  a city  ordinance  forbid- 
ding’ tli(‘  carrying*'  of  dead  bodies  at  j)nblic  funerals  into 
(‘lini’clies,  which  it  sustained  as  a health  measure.  The  gen- 
(‘ral  ])rin(‘i|)l(*s  of  i)olitical  liberty  recated  in  the  Ordinance 
were  held  abrogated  by  coimnon  consent,  and  tiie  similar  re- 
citals in  the  State  'Oonstitution  under  which  the  State  was  ad- 
mitted, held  substituted  therefor. 

1845  Pollard  v.  Hagen,  3 How.,  21  ll,  construes  the  navigation 
clause  of  the  enai)ling  act  for  Alabama  as  not  determining  the 
title  to  shore  |)ro|)erty  in  Alabama,  and  holds  that  the  naviga- 
tion clause  of  the  Ordinance  is  not  inconsistent  with  the  Oon- 
stitution and  that  its  ]*e-enactment  in  the  enabling  act  for 
Alabama  is  valid  as  a regulation  of  commerce  among  the  sev- 
eral States,  ''and  therefore  as  binding  on  the  other  States  as 
Alabama.” 

18(;(i  Bates  v.  Broirn^  72  U.  S.  (5  Wall.),  710. 

The  U.  S.  Supreme  Court  here  held  that  the  rule  of  common 
law,  commonly  called  the  rule  of  shifting  inheritance,  is  not  in 
force  in  Illinois,  and  the  reason  assigned  is  that  the  Ordinance 
of  1787  had  provided  a different  rule. 

It  amounts  to  a holding  that  the  provision  of  the  Ordinance 
of  1787  on  this  subject  was  in  force  in  Illinois  until  altered  by 
State  legislation. 

1850  Strader  v.  Graham,  51  U.  S.  (10  How.),  82;  Error  to  Ky. 

Bill  against  owner  of  steaml)oat  for  aiding  the  escape  of 
slaves  and  for  lien  on  boat  therefor.  Decree  upheld  the  lien 
in  Kentucky. 

IVrit  of  error  dismissed  by  the  U.  S.  Court  for  want  of 
jurisdiction. 

Plaintiff  in  error  claimed  b}^  virtue  of  the  slavery  provision 
of  the  Ordinance  of  1787  that  the  decree  was  erroneous. 

Tenet,  C.  J.,  proceeded  to  state  that  this  provision  of  the 
Ordinance  was  not  in  force. 

]^[cLean,  d.  In  a separate  opinion  agreed  that  the  writ  of 
error  was  properly  dismissed  for  want  of  jurisdiction 

^Cind  anything  that  is  said  in  the  opinion  of  the  court  in 
relation  to  the  Ordinance  beyond  this,  is  not  in  the  case  and 
is  consequently  extra  judicial.” 

Catron,  J.,  i^rotested  that  while  the  slavery  question  was 
a (luestion  for  State  legislation  and  regulation,  the  navigation 
clause  of  the  Ordinance  stood  on  a different  footing  and  that 
the  dictum  of  the  court  if  aiq)lied  to  that  navigation  clause 

“might  be  disregarded  by  the  State  Courts  as  obiter  and 
a dictum  uncalled  for.  For  thirl g gears  the  State  Courts 
u'ithin  the  territorg  ceded  bg  Virginia  have  held  this  parV 


of  (li(>  I OK  I III  (I  r dele  to  l)c  in  fovea  and  hividinfj  on  Huan 
vvspaciiv(di)  and  I feel  annnlliyuj  lo  disfiirh  this  irliolesonie 
eonrse  of  decision  ivhich  is  so  conservative  of  the  rights 
of  others,  i}i  a case  u'here  the  fourth  article  is  in  noivisc 
involved/’ 

Strader  v.  (irahavi  belongs  to  the  same  category  as  tlie 
Dred  Scott  case  decided  by  the  same  Chief  Justice  (19  How., 
o9o)  six  years  later  (Marcli  6,  1857).  Both  contained  the 
same  kind  of  obiter  dicta. 

The  opinion  of  the  American  Bar  on  the  Dred  Scott  case 
“is  to  the  effect  that  the  court  after  holding  upon  con- 
sideration of  the  plea  in  abatement  that  Dred  Scott  was 
not  a citizen  of  the  United  States  and  that  therefore  the 
Circuit  Court  had  no  jurisdiction,  ought  to  have  dismissed 
the  case  without  entering  upon  the  consideration  of  the 
second  question  involved,  and  that  in  so  doing  they  tran- 
scended the  principal  bounds  of  judicial  authority  and 
indulged  in  mere  obiter  dicta  of  no  legal  validity  or  con- 
clusiveness.” 

Carson’s  History  of  the  Supreme  Court  of  the  U.  S., 
pp.  370-371. 

The  name  of  the  case  being  changed,  the  same  criticism  holds 
true  of  Strader  v.  Graham. 

Abraham  Lincoln  held  the  Ordinance  of  1787  to  be  in  force. 

2 Lincoln’s  Collected  Works,  pp.  549-50. 

Mr.  Webster,  in  his  reply  to  Hayne  and  remarks  on  the 
Uoote  resolution,  held  the  Ordinance  of  1787  to  be  in  force 
and  ])ermanent  in  effect. 

3 Webster’s  Works  (Little  & Brown  1851),  pp.  203-4. 

1853  Jollg  V.  Terre  Haute  Drau'bridge  Co.,  0 McLean,  238. 

Leavitt,  Dist.  J.,  reaffirmed  the  decisions  in  1st  and  3rd 
McLean. 

1854  Columbus  Insurance  Co.  y.  Curtenius,  0 McLean,  209, 

])rotests  against  the  new  decision  in  Strader  v.  Graham. 

1874  The  Montello,  20  AVall.,  430,  holds  the  Ordinance  in  force 
in  Wis(‘onsin. 

1807  Woodman  v.  Kilbourn  Mfg.  Co.,  1 Bissell,  540. 

Held  that  the  erection  of  a lock  and  dam  across  the  Wiscon- 
sin River,  with  ])rovisions  for  navigation  in  conformity  to  a 
statute  authorizing  the  same,  was  not  niK'iinstitutional  or  in 
violation  of  the  ordinance  or  statute  admitting  AVisconsin  to 
the  Union.  (Per  Davis,  J.,  and  Miller,  I).  J.) 

1877  Pound  v.  Turck,  95  U.  S.,  459. 

Action  for  injury  to  a raft  going  down  the  Chippewa  by 
defendant’s  dam.  Defendants  showed  that  they  had  the  au- 
thority of  a special  act  of  the  AA^isconsin  Ijegislatiire  (AVis.  Pr. 


Ij.,  IS;-)?,  1).  5:]8)  for  jiiaiiitainiiig  the  dam;  tliat  tlie  aet  had 
suitable  protecdioiis  for  navigation  and  tliat  they  had  eoinplied 
with  th(‘  a('t.  Tlie  aet  was  lield  valid. 

.1882  Kscundha  Company  v.  Chicayo,  107  II.  S.,  078. 

Bridge  ordinanee  of  Chieago  i-egnlating  opening  and  clos- 
ing of  drawl)ridges  over  Chieago  River  upheld. 

Tlie  decision  holds  both  (1)  that  the  Ordinanee  is  not  in 
force,  because  the  State  became  e((ual  with  the  other  States, 
and  (2)  that  a drawbridge  across  the  river  does  not  violate  the 
Ordinance. 

Point  ('!)  was  on  the  authority  of  Strader  v.  Graham^  and 
l^oint  (2)  on  that  of  Palmer  v.  Commissioners  of  Cuyahoga 
County,  3d  McLean,  226. 

This  case,  therefore,  may  be  harmonized  with  each  of  those. 

This  is  the  first  complete  formulation  of  the  ‘‘equal  foot- 
ing’^ doctrine  as  amounting  to  an  implied  abrogation  of  the 
Ordinance. 

But  the  Ordinance  bound  the  other  States  equally 
with  the  new  'State  and  was  expressly  held  to  do  so  in 
Pollard  V.  Hagan,  3 How.,  212.  As  a regulation  of  commerce, 
the  new  acts  l)y  the  new  Government  confirming  the  Ordi- 
nance bound  all  the  States  alike,  in  the  same  way  as  the  com- 
jiact  between  Kentucky  and  Virginia  which  was  ratified  by 
the  Act  admitting  Kentucky  (1  U.  S.  Stat.  at  L.,  p.  189).  This 
Act  ratifying  the  compact  concerning  the  navigation  of  the 
Ohio  was  a regulation  of  commerce  and  as  such  upheld  in  the 
Wheeling  Bridge  Case  (13  How.,  518). 

The  same  reasoning  sustains  the  navigation  clause  of  the 
Ordinance  of  1787  also.  The  validity  of  the  compact  was  re- 
affirmed in  Missouri  v.  Illinois,  200  U.  S.,  496,  at  519. 

1883  Diduth  Lumher  Co.  v.  St.  Louis  Boom  Company,  17  Fed. 

Rep.,  419. 

Millee,  J.,  orally,  held  that  the  Ordinance  of  1787  did  not 
apply  to  the  St.  Louis  River  in  the  eastern  part  of  Minnesota, 
saying — 

“We  have  long  ago  decided  that  the  original  Act  con- 
cerning the  Northwestern  Territory  ceased  to  be  of  any 
force,  etc.” 

The  contention  had  been  made  that  the  Ordinance  forbade  the 
chartering  of  a boom  company.  Miller,  J.,  dismissed  this  quasi 
in  furore,  by  a decision  which  was  perfectly  correct,  accom- 
panied by  dicta  which  were  unwarranted  and  mistaken. 

1884  Willamet  I.  B.  Co.  v.  Hatch,  19  Fed.  Rep.,  347. 

On  l)ill  of  review  from  original  decree  in  6 Fed.  Rep.,  326. 

De.vdy,  j.,  holds  that  the  navigation  clause  in  the  Act,  ad- 
mitting Oregon  was  valid  as  a regulation  of  interstate  com- 


317 


inerco  and  was  horrowod  iVorn  tlie  Oi-dinaru'o  of  1787;  that 
that  Ordinaneo  had  been  ratified  by  the  first  Congress  under 
the  C/Onstitution  (1  Stat.  at  L.,  p.  bO),  and  was  binding  as  a 
eoininereial  regulation,  and  that  a proposed  bridge  across  the 
Wallaniet  Kiver  at  Portland  was  in  violation  thereof. 

Circuit  Judge  Sawyeh  concurred,  following  the  Wheeling 
Bridge  Case  and  referring  the  parties  to  the  Legislature  for 
authorization. 

On  the  hearing  of  the  bill  of  review  the  court  adhered  to  its 
original  ])osition  and  quoted  the  opinions  of  Justices  McLean 
and  Catron  in  the  Strader  Case  as  correctly  suggesting  that 
the  opinion  of  the  majority  was  uncalled  for  as  an  obiter 
dictum. 

Deady,  J.,  said  (p.  359)  : 

therefore,  respectfully  submit  that  the  clause  in 
the  fourth  article  of  the  compact  in  the  Ordinance  of  1787, 
relating  to  the  navigable  waters  in  the  Northwest  Terri- 
tory, having  been  enacted  by  Congress  (1  St.  50)  was  a 
valid  commercial  regulation  as  to  the  navigable  waters 
in  said  territory  or  the  states  afterwards  formed  therein 
until  repealed  by  it,  and  therefore  it  is  still  in  force  in 
Illinois. 

. But  be  this  as  it  may,  the  decision  does  not  touch  the 

question  of  the  validity  or  force  and  effect  of  the  Act  of 
1859.  For  on  what  possible  ground  can  it  be  claimed  that 
the  admission  of  Oregon  into  the  Union  set  aside  or  super- 
seded an  otherwise  valid  clause  in  the  very  iVct  of  ad- 
mission, declaring  the  navigable  waters  of  the  future 
State  ‘common  highways?’  ” 

Judge  Deady  insisted  that  a low  solid  bridge  without  a draw 
violated  the  ()rdinan(*e,  but  a suitable  drawbridge  did  not. 

1887  Willamette  I.  B.  Co.  v.  Hatch,  U?5  U.  S.,  1. 

This  decision  reverses  that  of  Judges  Sawyer  and  Deady 
in  the  last  })receding  case.  » 

Jn  the  statement  of  the  case  the  court  mentions  that — 

“On  the  18th  of  October,  1878,  the  Legislature  of  Ore- 
gon i)assed  an  Act  entitled  ‘An  Act  to  authorize  the  con- 
struction of  a bridge  on  the  Willamette  Eiver,  etc.’  ” — 
and  proceeds  to  state  that  the  bridge  in  question  was  built 
under  this  authority. 

Bradley,  J.,  concedes  it  to  be  the  correct  view  that  the  navi- 
gation clause  of  the  Ordinance  of  1787  as  re-enacted  in  the 
legislation  of  the  new  Congress  under  the  Constitution  of 
1789,  is  valid  legislation  as  an  exercise  of  the  power  to  regu- 
late interstate  commerce,  and  then  holds  that  such  valid  regu- 
lation does  not  prohibit  physical  obstruction,  but  only  the 


118 


iin|)()sirK)ii  of  duties  for  the  use  of  tlu;  navigation  and  in  dis- 
(u-iinination,  denying  to  the  eitizens  of  other  States  the  equal 
rigid  1o  use  th(‘  navigation,  and  that  it  leaves  the  States 
with  ])ower  to  autliorize  the  ereetion  of  bridges  and  dams  on 
sueh  streams. 

‘‘77/e  clausa  iu  question  cannot  he  regarded  as  estab- 
lish iug  the  police  power  of  the  U)(iied  States  over  the 
rivers  of  Oregon^  or  as  giving  to  the  federal  courts  the 
right  to  hear  and  detennine,  according  to  federal  law, 
everg  co)n])laint  that  mag  be  made  of  an  impediment  in, 
or  an  encroachnient  upon,  the  navigation  of  those  rivers. 

“We  do  not  doubt  that  CV)ngress,  if  it  saw  tit,  could 
thus  assume  tlie  care  of  said  streams,  in  the  interest  of 
foreign  and  interstate  commerce;  we  only  sag  that,  in  our 
opinion,  it  has  not  done  so  by  the  clause  hi  question.’’ 

(p.  w>.) 

AVliile  Bradli:y,  »J.,  re})eats  some  of  the  dicta  of  Strader  v. 
a rah  am,  the  deciding  portion  of  the  case  is  entirely  in  har- 
mony with  the  position  that  the  Ordinance  is  in  force.  He 
says  (p.  10) : 

“(Conceding  this  to  he  the  correct  view,  the  question 
then  arises,  what  is  its  fair  construction?” 

He  answers  that  it  is  in  force  to  prohihit  duties  or  discrim- 
inations upon  the  use  of  the  navigation. 

This  is  sufficient  for  the  purposes  of  the  State.  It  con- 
cedes that  there  is  a valid  dedication  of  a highway  which  is 
still  in  force,  but  declines  to  give  it  federal  policing,  turning 
that  over  to  the  State  authorities. 

And  for  that  reason  this  case  was  brought  in  the  State  court. 

1884  Cardwell  v.  Bridge  Company,  113  U.  S.,  205. 

Bill  to  remove  a bridge  over  American  liiver  in  California. 
Dismissed  on  demurrer.  Decree  affirmed  alcove. 

In  the  statement  of  the  case  it  is  said  (p.  205)  that — 

“The  defendant  was  a'  corporation  organized  under 
the  laws  of  California,  and,  pursuant  to  the  authority  con- 
feri'ed  l)y  an  Act  of  its  Legislature,  had'  constructed  a 
bridge,  etc.” 

The  opinion  here  is  ambignons.  It  asserts  (1)  that  the 
“equal  footing”  doctrine  is  an  abrogation  of  the  Ordinance 
and  of  the  repetition  of  it  in  the  Act  admitting  California, 
and  (2)  that  the  bridge  in  question  does  not  violate  the  pro- 
vision. 

It  concludes  with  the  Escanaha  Case  and  says  (p.  212)  : 

“TLe  there  held  that  a bridge  constructed  iritli  a draw 
could  not  be  regarded  within  the  Ordinance  of  1787  as 
an  obstruction  to  the  navigation  of  the  stream.  We  irere 


119 


'}ioi  i'('(jifirc(/  to  <\rj)r('ss  (in//  fuilhor  opnuon  os  to  tin, 
uironinf/  of  the  Ordutonce.”  ^ 

(Aliy thing  said  in  that  (‘ase  beyond  this  is  only  a,  (Iwl/iini.) 
'"hut  upon  uKifurc  (did  carofid  consid('r(iti()}i,  * * 

Wc  (in'  of  opinion  ilidt,  if  irc  triuit  the  (:kdis(',  as  divisitjl(' 
into  tiro  provisions,  tlu'y  must  t)e  constriKut  torjether  as 
having  but  one  object,  nanudg,  to  insure  a highwag 
equallg  open  to  all  ivithout  prefenmce  to  ang,  and  unofj- 
structed  bg  duties  or  tolls,  (dul  thus  piuwent  the  use  of 
the  navigable  streams  by  private  parties  to  the  exclusion 
of  the  public,  and  the  exaction  of  any  toll  for  their  navi- 
gation; and  that  the  clause  contemplated  no  other  restric- 
tion upon  the  poiver  of  the  State,  etc.” 

1885  Van  BrocMin  v.  State  of  Tennessee,  117  U.  S.,  151. 

The  court  here  held  that  property  situated  in  .Tennessee, 
owned  l)y  the  United  States  for  the  purpose  of  carrying  on  the 
Federal  Government,  is  exempt  by  the  Constitution  of  tlie 
United  States  from  State  taxation. 

Incidentally,  Gkay,  J.,  rehearses  the  history  of  the  organ- 
ization of  the  Government,  the  Articles  of  Confederation,  the 
Ordinance  of  1787  and  nnmerous  Acts  admitting  States  into'^ 
the  Union.  Incidentally,  he  quotes  without  application  the 
remark  from  Strader  v.  Graham,  that  the  Ordinance  of  1787 
ceased  to  be  operative  after  the  admission  of  the  State  into 
the  Union. 

]88t)  Ilainilton  v.  Vicksburg , (dc.,  B.  R.,  lU)  U.  S.,  280. 

Here  the  court,  pei-  Field,  d.,  ipiheld  the  constitutionality 
of  an  A(*t  of  Arkansas  authorizing  a bridge  over  Bouft  River, 
a tributary  of  the  Ouachita,  and  reiterated  the  statement  in 
the  (Uirduadl  Case  that  the  object  of  the  navigation  clause' 
of  the  Act  admitting  .Arkansas  was  ”to  insure  a high  wag 
(Ujuallg  open  to  all  irithout  preference  to  any,  and  unobstructed 
by  duties  or  tolls”  (]).  285),  and  that  the  clause  contenqilated 
^‘no  other  restriction  upon  the  power  of  the  State  in  author- 
izing the  construction  of  bridges,”  ete*.  (]).  285.) 

1880  JIusev.  Glover,  119  U.  S.,  542. 

Aiipeal  from  the  Northern  District  ot‘  Illinois,  11  Bissell, 
550. 

The  court  here  iqiField  the  validity  of  the  Illinois  statute 
of  February  28,  1867,  for  canal  and  river  im])rovements 
(Stead’s  (Imal  Coni]).,  ]).  158;  B.  1807,  ]■).  81),  authorizing 
the  ('onstruction  of  a lock  and  dam  in  the  Illinois  River, 
and  the  Act  of  March  7,  1872  (Stead’s  Canal  Comp.,  ]).  152; 
1j.  1871-2,  ]).  215)  authorizing  the  canal  ('ommissioners  to 
collect  a toll  for  the  nse  of  the  lo(*k  and  dam. 

There  the  comolainanis  sought  to  enjoin  the  canal  commis- 
sioners from  collecting  the  toll. 


.120 


Tlie  coiii't  Jiuld  that  this  Jegislatioii  authorizing  the  im- 
provoineiit  of  tlie  river  and  the  charging  of  the  toll  for  tlie  im- 
provement was  not  a violation  of  the  Ordinance. 

Harlan,  d.,  delivered  the  opinion  at  the  Circuit  and  de- 
clined to  hold  that  the  Ordinance  was  not  in  force,  saying: 

‘‘The  utmost,  i)erhaps,  which  can  be  claimed  is  that 
the  provision  tvas  intended  to  secure  the  use  of  such  navig- 
able streams  as  highivays  upon  terms  of  equality;  that  is, 
without  disc]*imination  against  inhal)itants  of  that  terri- 
tory or  citizens  of  any  of  the  United  States.” 

110  U.  S.,  550,  the  court  affirmed  this,  the  opinion  being  by 
Ujeld,  J. 

After  re])eating  liis  holdings  in  the  Escanaba  Case,  both  that 
following  the  dictum  of  Taney,  C.  J.,  in  Strader  v.  Graham, 
and  that  which  held  that  the  Ordinance  was  not  violated  by 
statutes  and  ordinances  of  the  State  authorizing  bridges  and 
improvements,  he  reiterated  his  decision  in  the  Cardivell  Case 
that  (pp.  547,  8)  : 

“Its  (the  Ordinance’s)  object  was  to  preserve  the 
rivers  as  highways  equally  open  to  all  persons  without 
preference  to  any,  and  unobstructed  by  duties  or  tolls. 
* * As  thus  construed  the  clause  would  prevent  any 

exclusive  use  of  the  navigable  waters  of  the  State — a 
possible  farming  out  of  the  privilege  of  navigating  them 
to  particular  individuals,  classes  or  corporations,  or  by 
vessels  of  a particular  character. 

* * * The  provision  of  the  clause  that  the  naviga- 

ble streams  should  be  highways  without  any  tax,  impost, 
or  duty,  has  (mark  the  present  tense,  treating  it  as  still 
in  force) — reference  to  their  navigation  in  their  natural 
state.  It  did  not  contemplate  that  such  navigation  might 
not  be  improved  by  artificial  means,  by  the  removal  of 
obstructions,  or  by  the  making  of  dams  for  deepen- 
ing the  waters,  or  by  turning  into  the  rivers  waters  from 
other  streams  to  increase  their  depth.  For  outla5^s  caused 
by  such  works  the  State  may  exact  reasonable  tolls.” 

1887  Sands  v.  Manistee  River  Improvement  Co.,  123  U.  S., 

The  plaintiff  was  a corporation  authorized  by  a statute  of 
the  State  and  by  the  assent  of  the  Governor  and  Attorney 
General  and  the  permit  of  a Board  of  Control  of  the  State 
of  Michigan,  to  improve  the  Manistee  Eiver  by  removing 
obstacles,  cutting  new  channels  and  confining  the  waters  of  the 
river  by  embankments. 

The  plaintiff  having  obtained  this  lawful  authorization  un- 
der a statute  of  the  State  and  the  specific  approval  of  the 
Governor,  the  Attorney  General  and  the  Board  of  Control, 
had  constructed  its  works. 


121 


It  was  authorized  by  the  statute  to  eolleet  tolls  lor  the  use 
ot*  the  iiuproveiuents  only. 

The  deteiidant  made  use  oi*  the  iuiprovements  and  refused 
to  pay  the  tolls,  claiming  that  the  ordinance  of  ,1787  exempted 
him  therefrom. 

The  court  said  (p.  295)  : 

“The  Manistee  Eiver  is  wholly  within  the  limits  of 
Michigan.  The  State,  therefore,  can  authorize  any  im- 
]:)rovement  which  in  its  judgment  will  enhance  its  value 
as  a means  of  transportation  from  one  part  of  the  State 
to  another.” 

Mr.  Justice  Field  proceeded  to  state  in  emphatic  form  the 
“equal  footing”  doctrine  as  an  abrogation  of  the  Ordinance. 

These  remarks  of  his  were  subject  to  the  same  criticism 
which  he  himself  made  in  the  Cardicell  Case  upon  his  dicta  in 
the  Escanaha  Case. 

Field,  J.,  realizing  this,  went  on  to  decide  the  case  thus 
(p.  296)  : 

“But,  independently  of  these  considerations,  there  is 
nothing  in  the  language  of  the  fourth  article  of  the  ordi- 
nance * * * which,  if  binding  upon  the  State,  would 

prevent  it  from  authorizing  the  improvements  made  in 
the  navigation  of  the  Manistee  Eiver.  * * * Por  out- 

lays caused  hy  such  works  the  State  may  exact  reason- 
able tolls.  * * * By  the  terms  tax,  impost,  and  duty, 

mentioned  in  the  Ordinance,  is  meant  a charge  for  the 
use  of  the  government,  not  compensation  for  improve- 
ments.” 

1892  M anon fj all ela  Nav.  Co.  v.  United  States,  148  IT.  S.,  312. 

A condemnation  case  by  which  the  federal  government  ac- 
quired the  locks  and  dams  of  the  Monongahela  Navigation 
Company.  The  court  upheld  the  statutes  of  the  State  author- 
izing that  company  to  construct  such  locks  and  dams,  and 
their  existence  as  lawful  property  when  constructed  under 
such  authorization. 

1893  Shively  v.  Boivlhy,  152  U.  S.,  1,  at  26,  33,  34. 

A most  interesting  case  on  the  title  to  lands  along  the 
Columbia  Eiver  below  high-water  mark,  cited  hei-e  because 
the  Ordinance  is  cited  on  page  26,  and  the  holding  is  repeated 
on  pages  33  and  34  that  it  did  not  prohibit  the  States  from 
authorizing  improvement  of  streams. 

1905  Manigaidt  v.  Springs,  199  IT.  S.,  473. 

The  State  may  authorize  dams  across  interior  streams. 

A bill  to  enjoin  the  defendant  from  damming  Kinloch  Creek 
under  a statute  authorizing  the  same  was  dismissed.  (123 
Fed.  Eep.,  700;  and  this  is  affirmed.) 

The  case  rehearses  the  doctrine  of  the  American  Bridge 


122 


Coinj)(Utij  Case,  112  IJ.  S.,  and  reiterates  that  the  right  of  nav- 
igation and  the  right  of  bridging  are  of  equal  dignity  and 
value. 

The  Conclusion  of  the  Bridge  Cases. 

That  the  clause  in  the  legislation  re-enacting. the  navigation 
clause  of  the  ordinance  is  in  force;  that  it  dedicated  a high- 
way; that  it  prevents  private  parties  from  excluding  the  pub- 
lic from  tlie  use  of  the  streams  to  which  it  referred;  that 
the  States  cannot  impose  duties,  tolls  or  discriminations,  but 
that  tlie  power  of  the  States  to  authorize  structures  is  not 
otherwise  restricted. 

The  Cardirell  Case  clearly  affirms  the  continuing  vitality  and 
validity  of  the  ordinance  and  its  prohibition  against  a private 
dam  or  bridge  unauthorized  by  the  Legislature  of  the  State. 

The  bridge  in  the  Cardivell  Case  was  authorized  by  a Spe- 
cial Act  of  tlie  California  Legislature.  Therefore  the  Lederal 
Court  declined  to  interfere. 

The  cases  seemingly  contra  to  the  Ordinance  which  directly 
deal  with  the  navigation  clause,  beginning  with  the  Escanaha 
Case,  107  U.  S.,  down  to  tlie  latest,  in  199  L.  S.,  are  all  of 
them  cases  where  the  State  had  by  statute  authorized  a liridge 
or  a dam,  or  where  the  suit  was  |)rosecuted  by  private  par- 
ties in  the  Federal  Court  without  going  to  the  State  court  in 
which  jurisdiction  of  the  policing  and  control  of  the  streams 
was  vested;  and  the  Federal  Court  held  that  the  Ordinance 
or  Enabling  Act  was  not  \iolated  hy  such  State  legislation; 
or  that  it  did  not  have  jurisdiction  of  the  subject. 

Several  of  them  repeat  the  dictum  of  Taney,  C.  J.,  in 
Strader  v.  Graham,  but  they  all  place  the  decision  of  the  case 
upon  the  ground  that  the  legislation  of  the  State  authorizing 
the  improvement  does  not  violate  the  Ordinance  or  Enabling 
Act.  and  most  of  them  repeat  the  emphatic  language  of  Field, 
J.,  in  113  IT.  S.,  205,  that  the  object  of  the  Ordinance  is  “to 
insure  a highiray  equally  open  to  all  nnUiout  preference  to 
any,  and  nnohst meted  hy  duties  or  tolls,  and  thus  prevent 
the  use  of  the  neivigahle  streams  hy  private  parties  to  the  ex- 
clusion of  the  pnJdic,  and  the  exaetion  of  any  toll  for  their 
navigation ; and  that  the  clause  contemplated  no  other  restric- 
tion upon  the  poirer  of  the  State  in  authorizing  the  construc- 
tion of  bridges  over  them  mhenever  such  construction  irould 
promote  the  convenience  of  the  puhlie.”  (P.  212.) 

The  defendant  here  has  no  such  authorization  from  the 
State.  On  the  contrary,  the  legislation  of  the  State  December 
0,  1907,  is  legislation  ordering  the  removal  of  such  dams 
and  obstructions,  and  forbidding  their  erection. 

These  cases  are  so  many  authorities  upholding  the  ])lenary 
power  of  the  State  to  protect  its  navigation. 


X I 1. 


NO  OR  APPROVAL  OP  THIS  PROPOSKl)  DAM  WAS  PVPIi  (iRANTPD  IJV 

EITHER  STATE  OR  PEDERAL  GOVERNMENT. 

IT  VIOLATES  THE  ACT  OF  CONGRESS  OP  M;ARCH  3,  1899,  REQUIRING  SUCH 

PERMIT  AND  APPROVAL. 

(30  U.  S.  Stat.  at  L.,  1157;  3 U.  S.  Comp.  St.,  p.  3540.) 

The  War  Department  declined  to  give  any  permit  therefor. 

Letter  of  Acting  Secretary  of  War  (Ahst.,  p.  1301). 

Testimony  of  Gen.  McKenzie,  Chief  of  U.  S.  Engineers  (Abst., 

pp.  175,  280). 

The  State  desires  this  question  specifically  ruled  upon  and 
prays  leave  to  make  the  following  additional  assignment  of  error 
upon  the  record,  and  that  the  same  be  now  considered  as  allowed 
and  tiled,  viz. : 

Additional  Assignment  op  Error. 

The  court  erred  in  not  holding  that  said  ])roposed  dam  and 
works  of  defendant  were  unlawful  and  in  violation  of  the  Act 
of  Congress  of  the  United  States  enacted  March  3,  1899,  entitled 
^Wn  Act  making  aiiiiroipriation  for  the  (*onstrnction,  repair  and 
lireservation  of  certain  ])nblic  works  on  rivers  and  harbors  and 
for  other  purposes  (L.  S.  St.  at  L.  1898-1899,  Ch.  425,  p.  1121,  Se(‘. 
9 at  1).  1151),  and  the  Aids  amendatory  thereof.” 


DIVISrOxN  FOUR. 
Fhrors  by  the  Trial  Court. 

T. 


ERRORS  IN  THE  DECREE. 

Tlie  assigHiHeiits  of  en-or  insisting  tliat  the  Court  erred  in  not 
liolding  and  decreeing  that  the  contracts  by  the  Canal  Commis- 
sioners lield  by  tlie  defendant  are  and  each  of  tliem  is  void  (viz: 
Nos.  5,  8-20)  and  the  assignments  Nos.  3,  4,  (i,  7,  21-20  (and  the 
additional  assignment),  insisting  that  the  Court  erred  in  not  hold- 
ing the  proposed  dam  an  unlawful  structure  and  insisting  dhat 
the  Court  erred  in  dissolving  the  injunction,  and  in  dismissing  the 
Information,  and  in  not  granting  a permanent  injunction,  and  in 
not  requiring  the  removal  of  the  partially  constructed  dam,  are 
insisted  on;  and  the  foregoing  divisions  of  this  brief  of  points  and 
authorities  adduced  in  sup])ort  thereof. 

II. 

THE  COURT  ERRED  lU  EXCLUDING  COMPETENT  EVIDENCE. 

1.  The  COURT  erred  in  striking  out  the  historical  reputation 

AND  TRADITION  EVIDENCE  AS  TO  THE  USE  OF  THE  RIVER. 

The  motion  by  the  defendant  to  strike  out  is  found  in  the  Ab- 
stract, pp.  955-7,  and  the  ruling  is  found  on  Abstract,  pages  1223- 
1238. 

The  best  evidence  rule  is  a rule  both  of  requirement  and  of  in- 
dulgence. The  best  evidence  that  the  nature  of  the  case  affords 
is  required,  and  the  best  evidence  that  the  nature  of  the,  case 
affords  is  competent. 

Omychund  v.  BarJcer^  per  Lord  Hardwick,  and  per  Wills, 
J.,  1 Atkins,  21. 

3 Blackstone’s  Commentaries,  368. 

Burke’s  opening  argument  in  the  trial  of  Warren  Hast- 
ings (11  Burke’s  Works,  Little  & Browm’s  Ed.,  p.  77). 

Best  on  Evidence,”  Section  295. 


125 


The  nilo  is  tlms  slalod  by  Mi*.  Wigin()j-(‘,  2 VVi^in()r(‘  on  I^]vi- 
deiice,  ScH'iioii  1582,  under  the  i>-eneral  lu^adin^':  ‘‘ Kxee})tions  to 
the  lleai’say  Rule;  Reputation  About  Land-Rights:” 

'^A.  IjAnd-Boundartes  and  Land-Customs. 

1.  THE  NECESSITY  PRINCIPT.E. 

S 1582.  Matter  must  he  ancient,  namely,  the  re[)utation 
of  a past  generation. 

'‘1810,  Swift,  C.  J.,  Evidence,  121:  'The  law  has  there- 
fore wisely  rejected  all  hearsay  evidence,  excepting  where  it 
is  impossible  in  the  nature  of  things  to  obtain  any  otlier. 
* * * This  happens  in  matters  of  long  standing,  where  +iie 

witnesses  who  were  knowing  to  them  are  not  in  being.  Such 
are  * * * the  ancient  boundaries  of  land.’ 

In  the  United  States  the  question  came  up  most  frequently 
with  reference  to  boundaries  of  land,  and  the  special  neces- 
sity of  reputation-evidence  in  such  cases  was  often  noticed : 

1797,  per  Curiam,  in  Montgomery  v.  Bichey,  2 Yeates,  213 : 
'It  must  be  obvious  that  when  the  country  becomes  cleared 
and  in  a state  of  improvement,  it  is  oftentimes  difficult  to 
trace  the  lines  of  a survey  made  in  early  times.  The  argu 
ment  ex  necessitate  rei  will  therefore  apply.’ 

1837,  Tucker,  C.  J.,  in  Ilarriman  v.  Brou  n,  8 Leigh,  707: 
'Questions  of  boundary,  after  the  lapse  of  many  years,  be- 
come of  necessity  questions  of  hearsay  and  reputation.  For 
boundaries  are  artificial,  arbitrary,  and  often  perishable;  and 
when  a generation  or  two  have  passed  away,  they  cannot  be 
established  by  the  testimony  of  eye-witnesses.’ 

1855,  Baltzell,  C.  J.,  in  Daggett  v.  Willey,  0 Fla.,  511  : 
'Reputation  or  hearsay,  taken  in  connection  with  other  evi- 
dence, is  entitled  to  respect  in  cases  of  boundary  when 
the  lapse  of  time  is  so  great  as  to  render  it  difficult,  if  not 
impossible,  to  prove  the  boundary  by  the  existence  of  the 
primitive  landmarks  or  otlier  evidence  than  that  of  hear- 
say.’ ” 

2.  The  cihcumstantiau  guarantee  of  trustworthiness. 

1583.  Reputation  is  Trustworthy,  where  tlie  matter  af- 
fects the  common  interests  of  a number  of  ])ersons  in  the 
same  locality,  and  results  in  a common  reputation.  This  may 
be  supposed  to  have  considerable  evidential  value.” 

1584.  * The  common  form  of  question  put  to 
. a reputation-witness  was:  'What  have  you  heard  old  men, 

now  deceased,  say  as  to  the  reputation  on  this  subject?’  The 
judges  constantly  speak  of  'reputation  from  deceased  per- 
sons.’ Thus,  though  in  form  the  information  may  he  merely 
what  deceased  persons  have  hven  heard  to  say  about  a cus- 


loin,  yet  in  eff'ect  it  eoines  or  ought  to  eorne  from  them  as  a 

sfateuicnt  of  the  reputation/ ’ 

* # * * * 

158(5  Tlie  mutter  sliould  !)e  one  of  public, 

or  general,  or  public  and  general,  interest.  (jg, 

eide  difficult  cases  it  is  necessary  still  to  seek  the  living  prin- 
ciple, and  ask  anetv  ivhether  the  matter  is  of  such  general  in- 
terest to  the  community  that  by  the  thorough  sifting  of  active, 
constant,  and  intelligent  discussion  a fairly  trustworthy  rep- 
utation is  likely  to  arise.” 

# * * 

1895,  ^'eymour,  J.,  in  Robinson  v.  Deivhurst,  15  C.  C.  A., 
4(5(5,  (58  Fed.,  336. 

1889,  Evans  v.  Merthyr  Tydfil,  1 Ch.,  241  (whether  a piece 
of  land  was  subject  to  commonable  rights.) 

1901,  Klinker  v.  Schmidt,  114  la.,  695,  87  N.  W.,  661  (street 
boundary). 

1883,  State  v.  Vale  Mills,^  63  N.  H.,  4 (the  former  line  of 
the  road  which  the  plaintiff  was  charged  with  obstructing). 

1874,  Cox  V.  State,  41  Tex.,  4 (county  lines). 

1824,  Ralston  v.  Miller^  3 Rand,  49  (street  lines). 

§ 1587  * the  United  States  the  decision  was 

early  reached  entirely  in  harmony  with  the  conditions  of  life 
at  the  time,  to  admit  reputation-evidence  of  the  landmarks 
of  private  title : 

1837,  Tucker,  J.,  in  Harriman  v.  Rroivn,  S Leigh,  708. 

1860,  Field,  C.  J.,  in  Morton  v.  Folger^  15  Cal.,  279. 

***** 

1882,  Neill  v.  Duke  of  Devonshire,  L.  R.,  8 App.  Cas.,  147 
(Seldouene,  Ld.  C.)  Lord  OTTagax:  ^‘Evidence  of  acts 
and  proceedings  ivith  reference  to  the  river  generally  was 
properly  admitted.” 

‘ * * * * * 

Wigmore,  §§  1596-1599,  B.  Events  of  General  History.  Rep- 
utation of  ancient  matters,  i.  e.,  those  of  former  generations 
admissible. 

***** 

1847,  Sanford,  V.  C.,  in  Bogardus  v.  Trinity  Church,  4 
Sandf.  Ch.,  724. 

England:  1672,  St.  Katherine’s  Hospital,  1 Vent.,  151 
(Ht  was  shewn  out  of  Speed’s  Chronicles  produced  in  Court, 
that  at  that  Time  Queen  Isabel  was  under  great  Calamity 
and  Oppression,  and  what  was  then  determined  against  her 
was  not  so  much  from  the  Right  of  the  Thing  as  the  Iniquity 
of  the  Times’)  ; 

1682,  Bronuker  v.  Atkyns,  Skinner,  14  (‘‘Speed’s  Chron- 
icle was  given  in  evidence  to  prove  the  Death  of  Isaliel, 


127 


QiuHMi  l)()wai>er  to  K.  II;  and  lliou^ii  Maynai’d  socnriod  to 
o[)})oso  it,  and  Dobiuns  said  it  was  dorni  by  (^)ns(irit;  y(;t  tin* 
(drud‘  dnslino  said  lio  know  not  wliat  hotter  I/root  (!onId  b(; 
made.  And  AVallop  said  that  in  the  Lord’s  JIoiiso  it  was  ad- 
mitted by  them  as  good  ovideiioe  in  the  Ijord  Bridgewater’s 
Case’)  ; 

1718,  Proceedings  respecting  the  Education,  etc.,  of  the 
Poyal  family,  15  llow  St.  Tr.,  1202,  1205,  1200,  1209  (the 
flndges  drew  up  an  opinion  upon  the  King’s  prerogative  in 
the  matter,  and  cited  precedents  on  the  exercise  of  the  pre- 
rogative from  Eymer’s  PoeBera,  Lord  Clarendon’s  History, 
Cotton’s  Eecord,  Kennett’s  History  of  England,  Burnet’s 
History  of  the  Eeformation)  ; 

1810,  Bidlen  v.  Michel,  4 Dow’s  Pari.  Cas.,  297,  (per  Lord 
Eedesdale,  and  Eldon,  Ld.  Ch.,  Domesday  Book,  and  Chartn- 
lary  history  of  vicarage). 

United  States:  1834,  Maygiierite  v.  Chouteau,  3 Mo.,  540, 
555  (DnPratz,  Barbe  Alarbois  and  others’  works  consulted 
as  to  the  existence  of  slaverv  of  Indians  in  America  in  the 
1700s) ; 

1830,  Co.  V .Alhiirger,  1 AAdiart,  409,  473  (a  letter  of  AAhlliam 
Penn  confirming  a certain  grant;  its  mention  Ln  Proud  and 
various  other  historical  works’  treated  as  sufficient,  the  mat- 
ter being  ancient)  ; 

1809,  Baird  v.  Bice,  03  Pa.,  489,  490  (in  determining  the 
ancient  plan  of  London’s  streets,  etc.,  so  as  to  interpret 
Penn’s  plan  of  Philadelphia,  the  following  works  were  con- 
sulted; Maitland’s  History  of  London,  1754;  Bohn’s  Pictorial 
Handbook  of  London,  1854;  Great  London  Directory,  1855); 

1811,  Hadfield  v.  Jameson,  2 Mnnf.,  53,  71,  per  Tucker,  J. 
(Edward’s  History  of  the  AVest  Indies  used  to  show  the  gov- 
ernment of  Hispaniola). 

(AVigmore  on  Evidence,  A^ol.  It,  pp.  1933-1947.) 

1843,  Stockton  v.  Wddiams  (Alich.),  1,  AValker’s  Ch.,  120 
(identity  of  grantee  in  ])nblic  treaty  with  tndian  tril^e;  repu- 
tation as  to  ])articnlar  expressions  and  identity  admissible. 
Affirmed  on  other  grounds  with  dictum  contra.  1 Doug., 
Alich.,  546. 

The  Des  Plaines  lEver  is  a land  l)onndary  and  highway. 

It  has  all  the  physical  characteristics  of  a line  and  boundary, 
extending  through  the  land  and  dividing  ownership  of  one  from 
another. 

This  river  is  itself  a boundary  lietween  Cook  County  and 
DuPage  County^  between  Lockport  and  AVest  Loclqiort,  and  is 
the  boundary  of  several  town  sites  and  plats  all  the  way  down 
the  stream. 


128 


Its  use  marking  it.  as  navigable  eliaraeterizes  it  as  a liigliway 
and  fixes  tlie  lionndary  between  i)rivate  and  ])ublie  riglits. 

lle])ntation  and  tradition  evideiiee  as  to  the  use  of  the  stream 
as  a liigbway  by  men  of  tlie  former  generations  is  competent 
evidence. 

2.  Mr.  Cooley  was  asked,  ‘‘How  would  the  stage  of  water  in  a 
state  of  nature  prior  to  these  artificial  obstructions  and  inter- 
ferences compare  witli  the  stage  of  water  in  the  19  recorded 
years'?’’  (Abst.,  pp.  823-4.) 

The  court  excluded  the  testimony. 

This  was  error.  It  prevented  the  court  from  ascertaining  the 
vet  effect  of  the  sevt'ral  artificial  and  radical  depletions  of  the 
stream.  In  contrast,  the  court  admitted  the  defendant’s  expert 
Johnston  to  answer  several  questions  going  to  substantially  the 
same  point.  (Abst.,  pp.  1397-9.) 

The  rulings  cannot  both  be  sustained.  One  is  necessarily  erron- 
eous. The  court  should  have  admitted  the  testimony  of  Cooley, 
who  knew,  and  excluded  that  of  Johnston,  who  did  not  know. 

3.  The  court  erred  in  excluding  the  former  pole  line  lease 
of  25  miles  of  tow-path  from  the  Canal  Commissioners  to  the 
defendant.  (Complainant’s  Ex.  2;  Abst.,  p.'931.) 

This  lease  (still  in  forcel^gave  the  defendant  the  use  of  the 
tow-path  from  Chicago  to  Joliet  and  Exhibit  K gave  it  the  use 
of  the  tow-path  from  Joliet  to  Morris,  the  two  together  con- 
stituting two-thirds  of  the  entire  length  of  the  tow-path. 

The  unlawfulness  of  an  admitted  act  may  be  shown  by  show- 
ing other  acts  and  of  a like  nature,  which  tend  to  disclose  a, 
common  purpose,  or  scheme  of  unlawfulness. 

Broun  V.  U.  S.,  142  Fed.,  p.  1. 

People  V.  Molineaux,  168  N.  Y.,  264;  62  L.  E.  A.,  193. 

Alex  V.  State,  56  Ga.,  478. 

In  a case  in  equity  to  set  aside  an  unlawful  contract,  other 
contracts  by  the  same  defendant  of  a similar  character  are  ad- 
missible on  an  issue  of  the  fraudulent  and  unlawful  character 
of  the  contract. 

Schroeder  v.  Walsh,  120  111.,  403. 


129 


(hiUI  V.  St.  John,  l]o  111.,  222;  approved,  Lockwood  v. 

Doane,  107  111.,  225. 

Miller  v.  Bedell,  21  J^a.  Ann.,  573. 

In  contrast,  the  court  admitted  for  tlie  defense  112  leases  by 
tlie  Canal  Connnissionei's,  of  the  9()-foot  strip  and  tow-patli  to 
show  their  practice.  We  respectfully  submit  that  the  two  rulings 
of  the  court  cannot  both  he  sustained.  (Ahst.,  ])p.  1165,  1387, 
1577-1582.) 

The  error  was  twofold.  The  lease  of  the  40  miles  of  the  tow- 
path  to  the  defendant,  itself,  was  competent,  while  leases  of  112 
odds  and  ends  of  the  90-foot  strip  to  a lot  of  strangers  were  not 
competent.  Those  transactions  were  res  inter  alios. 

Aurora  v.  Brown,  12  111.  App.,  122. 

Simmons  v.  Neiv  Bedford  Steamboat  Co.,  97  Mass.,  361. 

Chicago  v.  Greer,  9 Wall.,  726. 

4.  The  court  erred  in  excluding  Complainant’s  Exhibits  3 
(Abst.,  p.  931c)  and  4 (Ahst.,  p.  931d),  which  were  contracts  be- 
tween the  Canal  Commissioners  and  one  Eobert  Gaylord,  an  as- 
sociate of  Charles  A.  Munroe’s,  and  which  Mr.  Munroe  nego- 
tiated. (Abst.,  pp.  218-219.) 

These  contracts  by  Munroe,  in  the  name  of  Gaylord,  with  the 
Canal  (Commissioners,  were  admissible  for  the  ])urpose  of  show- 
ing the  relations  of  Munroe  (through  whom  the  contracts  in 
(luestion  were  ac(piired),  with  the  Canal  Commissioners  from 
whom  the  contracts  were  ultimately  accpiired. 

5.  The  court  erred  in  excluding  Continental  IVaterway  ])ro- 
tile,  a public  document  made  by  Mr.  Cooley  for  the  Sanitary 
District  of  Chicago,  showing  the  relation  of  the  Des  Plaines  Piver 
to  the  waterways  of  the  country,  and  its  slopes  as  compared  with 
theirs  (Cooley’s  Exhibit  37;  Atlas,.]).  3975a).  This  was  excluded 
at  (Abst.,  p.  1188). 

6.  In  the  clean-up  of  details  at  the  end  of  the  case,  we  offered 
to  show  by  Mr.  Cooley  that  the  maximum  flood  volume  of  the  Des 
Plaines  River  at  this  point  when  the  Drainage  Channel  is  com- 
pleted, tlTroughout  its  widest  ])art,  ])liis  the  high  water  flood  of 


i:]0 

would  aggi*ogato  40, ()()()  (‘uhic*  foot  ])or  uiinute.  The  court 
excluded  the  testiiuoiiy.  This  was  error.  (Abst.,  p.  1674.) 

7.  We  also  offered  to  show  tliat  tlie  period  of  navigation  on 
the  Illinois  and  Michigan  (linal  was  made  to  correspond  to  tliat 
on  the  (treat  Lakes,  which  was  determined  by  the  conditions  at 
JNFackinaw,  and  that  navigation  there  is  limited  by  ice  conditions 
iuid  winter  to  165  days  in  the  3"ear,  and  that  the  period  of  winter 
interru])tions  on  the  Des  Idaines  River  by  ice  is  from  60  to  70  days. 
Tlie  court  excluded  the  testimony.  Tliis  was  error.  (Abst.,  p. 
1674.) 

8.  Similarly  we  offered  to  prove  by  Mr.  Cooley  that  the  diffi- 
culties of  navigation  which  had  been  referred  to  by  witnesses 
for  the  defense  on  the  Des  Plaines  River,  as  compared  with  the 
rivers  referred  to  by  the  witnesses  for  the  defense  and  reported 
in  the  Reports  of  the  U.  S.  Engineers,  were  less  than  the  average 
amount  of  difficulties  on  such  streams.  The  court  excluded  the 
testimony.  (Abst.,  p.  1675.) 

9.  Again,  in  the  final  clean-up  of  details^  counsel  for  the  State 
offered  in  evidence  a certified  coiiv  of  the  lease  of  Dam  No.  1, 
with  the  assignment  of  the  same,  under  which  the  defendant 
claims  to  hold  it,  also  the  consent  decree  under  which  the  Dam  No. 
1 had  been  reconstructed,  showing  exactly  what  private  rights, 
if  any,  there  were  in  the  State  property  known  as  Dam  No.  1, 
and  showing  to  what  extent,  if  at  all,  there  was  any  right  to  main- 
tain any  private  right  to  the  maintenance  of  this  dam  across 
the  river.  The  court  excluded  the  testimony,  although  it  had  ad- 
mitted evidence  from  several  witnesses  for  the  defense  to  the 
existence  of  several  old  dams  and  this  dam.  (Abst.,  p.  1676.) 


131 


III. 

THE  COURT  ERRED  ADMITTINCx  INCOMPETENT  EVIDENCE  OFFERED  ON 
BEHALF  OF  THE  DEFENDANT. 

The  court  received  in  evidence  on  the  offer  of  the  defendant 
a multitude  of  documents  purporting  to  set  forth  acts  by  the 
Commissioners  of  the  Illinois  and  Michigan  Canal. 

1.  The  ‘^Druley  v.  Adam’^  documents.  Among  these  were  a 
resolution  in  1882  by  the  Canal  Commissioners,  that  became 
equitably  and  justly  incumbent  on  the  state  to  assume  the  re- 
sponsibility of  such  suit,’^ — meaning  thereby  the  suit  known  as 
Druley  V.  Adam.  (105  111.,  177.) 

The  Canal  Commissioners  had  assumed  to  lease  to  Ilruley 
and  Slater  some  water-power  created  by  the  extra  water  of  the 
Deep  Cut.  Adam  contended  that  the  surplus  over  and  above 
the  amount  necessary  to  feed  the  canal,  and  capable  of  being  de- 
voted to  water-power  purposes, — should  inure  to  him. 

He  sued  Druley  and  Slater  for  the  diversion  of  the  power.  This 
was  the  suit  as  to  which  the  Canal  Commissioners  jiassed  said 
resolution. 

With  this  resolution  was  received  in  evidence  here  the  voucher  of 
the  sheriff,  paid  by  the  Canal  Commissioners  for  the  judgment  and 
costs  in  that  case  (Abst.,  pp.  1339-43.) 

Also  Druley ’s  lawyer’s  bill  for  his  services  (Abst.,  p.  1342). 
The  opinion  of  Judge  McKoberts  (Abst.,  }).  139()). 

Also  the  abstract  and  briefs  on  both  sides  in  the  Appellate 
and  Supreme  Courts,  and  petition  for  re-hearing  in  the  Supreme 
Court,  in  that  case  (introduced  at  Abst.,  pp.  1419-1428;  abstracted 
at  pp.  1733-1853). 

(On  page  1344,  the  abstract  says: 

Counsel  for  complainant  stated  that  he  further  offered  it 
as  a basis  of  showing  hereafter  the  position  taken  by  these 
people  as  to  the  condition  of  this  river  in  the  tiling  of  their 
briefs  in  the  Supreme  Court.” 

This  was  a misprint.  It  was  counsel  for  defendant  who  so 
stated.) 


Pages  l“l-P.)-2(),  counsel  for  defendant  said: 

‘^Tlie  doctrine  under  wliicli  we  claim  the  right  to  introduce 
him  is  that  as  to  matters  in  controversy  in  a law  suit,  state- 
]iients  or  admissions  made  by  a party  at  any  time,  at  any  place, 
are  competent,  and  that  is  especially  so  of  statements  made 
in  i)roceedings  of  record,  to  which  such  party  was  a party, 
or  where  he  was  a real  party  in  interest.  The  introduction 
of  briefs — in  my  exj)erience — I have  known  it  a number  of 
times  as  being  of  the  same  nature  as  })leadings.  Pleadings 
are  always  taken  up  as  admissible  against  a })arty.  -We  have 
established  in  this  case  that  while  the  nominal  party  was  Mr. 
Druley,  the  actual  party  was  the  State.  The  Canal  Commis- 
sioners, by  their  resolution,  said  it  was  their  duty  to  assume, 
the  State’s  duty  to  assume,  and  the  state  retained  and  paid 
the  attorney  who  appeared  in  the  caBe  for  Druley  and  Slater 
and  paid  the  fees  in  that  case.  The  record  shows  clearly  that 
it  was  really  a suit  hy  the  State.  The  rights  of  the  State  or 
what  was  contended  for  throughout  were  in  the  briefs  of  both 
parties.  It  is  upon  that  theory  that  we  claim  they  are  admis- 
sible.” (Ahst.,  p.  1420.) 

The  court  adopted  this  theory  and  admitted  the  volume  of  briefs 
in  evidence. 

This  was  error. 

The  Canal  Commissioners  were  not  the  State  of  Illinois. 

They  were  statutory  officers,  with  statutory  powers.  They 
had  no  implied  powers. 

The  resolution  was  beyond  their  power.  (See  Division  One, 
Points  I and  II,  of  this  brief,  and  the  authorities  there  cited.) 

It  was  not  a suit  by  the  State,  nor  hy  the  Canal  Commission- 
ers, nor  by  the  lessee  of  the  Canal  Commissioners. 

It  was  a suit  hy  Adam  against  the  lessee  of  the  Canal  Com- 
missioners. 

The  Canal  Commissioners  could  not  be  sued, 

(E.  St.,  Ch.  19,  Sec.  3.) 

And  the  State  of  Illinois  could  not  be  sued. 

(Constitution  of  1870,  Article  4,  Sec.  26.) 

‘‘The  State  of  Illinois  shall  never  be  made  a defendant  in 
.any  court  of  law  or  equity.” 


That  was  oiiloreod  by  this  eourt  in: 

Moore  v.  School  Trustees,  19  Til.,  83. 

People  V.  Dulaney,  96  III.,  503. 

In  re  City  of  Mt.  Vernon,  147  111.,  359. 

That  suit  was  tried  on  an  agreed  ease.  (Abstract  in  this 
case,  p.  1420.) 

Again,  the  evidence  stipulated  there,  was  ‘‘for  the  purposes 
of  this  appeal M 

It  could  not  bind  the  State  of  Illinois  25  years  later  in  an- 
other suit. 

The  ‘ A’esponsibility”  assumed  by  the  resolution  itself ' was 
merely  pecuniary. 

By  the  resolution  it  was  ^ Aesolved  that  said  judgment  and  costs 
be  paid;  hut  with  a view  to  saving  the  future  rights  of  the  state 
that  said  judgment  he  paid  under  protest.” 

The  briefs  in  Druley  v.  Adam  were  put  in  under  the  erroneous 
statement  that  “it  was  really  a suit  hy  the  state”  to  show  some 
such  as  the  following: 

^The  Des  Plaines  Kiver  is  in  truth  a very  insignificant 
stream,  never  of  much  use  as  a feeder  in  the  season  when  its 
services  are  most  needed,  and,  except  as  reinforced  by  con- 
tributions of  the  Canal,  affording  sites  only  for  what  are  some- 
times denominated  ‘‘thundershower  mills.’  ” (Abst.,  p.  1425.) 

“The  lies  Plaines  Eiver  was  not  much  of  a stream,  but  the 
Trustees  wanted  to  control  it  as  a feeder  for  whatever  it  was 
worth,  without  the  liability  of  incessant  law  suits.”  (Abst., 
p.  1426.) 

These  statements  purport  to  be  statements  of  fact; — they  are 
made  in  a case  in  which  the  entire  evidence  was  stipulated; — 
there  is  not  anything  in  the  entire  stipulated  evidence  in  the  case 
of  Druley  v.  Adams  to  justify  any  such  statements;  they  are  stray 
expressions  and  figures  of  speech  outside  the  record,  and  used  by 
the  lawyer  in  argument,  and  are  no  evidence  of  anything. 

The  entire  abstract  and  the  entire  brief  remain  in  evidence. 
(Abst.,  pp.  1733-1854.)  There  was  no  other  evidence. 

No  estoppel  could  run  against  the  state  thereby: 

“In  order  to  create  an  estoppel,  the  following  elements 
must  be  present: 


(1)  There  must  liave  been  a re})re.sentation  ooacerning 
the  material  facts. 

(2)  The  re])reseTitatioa  must  liave  l)een  made  with  the 
kiiowlediije  of  tlie  facts. 

(d)  Tlie  ])arty  to  wliom  it  was  made  must  have  ])een  ig- 
norant of  the  trntli  of  tlie  matter. 

(4)  It  must  liave  been  made  with  the  intention  that  it  would 
he  acted  upon.’’ 

People  V.  Brown,  67  111.,  485. 

None  of  these  elements  is  present. 

The  verbal  admissions  of  the  counsel  made  in  the  trial  of  an- 
other cause  are  not  admissible  by  way  of  estoppel. 

Kepser  v.  Pichrell,  4 App.  Cas.  (D.  C.),  198. 

Adam  is  a stranger  to  this  law  suit,  and  the  state  was  a stranger 
to  the  Adam  law  suit.  There  is  no  estoppel  against  the  state 
here  by  the  admission  of  one  stranger,  Druley,  to  another  stranger, 
Adam,  there. 

Bohinson  v.  HawMns,  38  Vt.,  693. 

Moore  v.  Boyd,  74  Cal.,  167. 

There  is  no  theory  on  which  an  agreed  statement  of  facts 
is  admissible  in  a suit  between  other  independent  parties,  merely 
because  the  subsequent  suit  relates  to  the  same  parties. 

Elfin y V.  Scoff,  2 Johns.  (N.  Y.),  157. 

Th  contention  of  defendant  is  that  Druley  and  Slater  were  only 
nominal  parties  and  that  the  Canal  Commissioners  (and  therefore 
the  state)  is  the  real  defendant  in  Druley  v.  Adam.  This  is 
wrong;  but  if  it  were  correct  it  would  not  aid  the  defendant. 

The  admissions  of  a nominal  defendant  are  not  admissible 
against  the  real  defendant  in  interest  who  is  not  a party. 

Day  V.  Baldwin,  34  Iowa,  380. 

Armsfrong  v.  Normandy,  5 Exch.,  409. 

There  is  no  estoppel  against  the  state  by  unauthorized,  or  extra- 
legal  acts  of  its  officers, — and  their  admissions  are  incompetent 
to  charge  it. 

Tyler  v.  Bailey,  71  111.,  34. 

People  V.  Brown,  67  Til.,  435. 

Demen f v.  BoJcker,  126  111.,  174. 


l.r) 

So  of  tlio  miautliorized  admission  by  a guardian.  II  is  inooni- 
])ot(mt  to  (‘liargo  llie  ward. 

Ilviseii  y.  Ileiscn,  145  III.,  (>58,  Point,  II  (p)).  570-71). 

2.  The  court  erred  in  receiving-  in  eviden(*e  112  leases  Ijy  the 
Canal  Commissioners  to  strangers  of  ])arcels  of  the  90-foot  strip 
(Ahst.,  pp.  1105,  1844,  1387,  1577,  1580,  1582).  The  error  was 
fourfold : 

(1)  Those  leases  were  res  inter  alios. 

(2)  The  proof  was  made  in  a majority  of  cases  by  merely  put- 
ting in  a page  from  the  Canal  Eeport  giving  a list  of  ^Seases 
of  ‘90-foot  strip’  and  lots.”  (See  Abst.,  pp.  1105,  1578,  1580,  1581, 
1582.) 

This  evidence  was  not  the  best  evidence.  It  gave  (at  Abst.,  1105) 
nothing  to  show  which  were  90-foot  strip  and  which  were  other 
lands;  at  pp.  1165,  1580-1-2  it  gave  nothing  as  to  the  term  of 
the  lease;  all  of  them  may  have  been  leases  at  will  or  for 
very  short  terms.  The  lease  at  ]:)age  1578  professed  to  give  the 
term,  five  of  them  being  for  10-year  terms  and  the  rest  for  less. 

These  lists  of  leases  do  not  disclose  anything  as  to  the  na- 
ture of  the  action  taken  by  the  Canal  Commissioners.  They  are 
simply  lists  taken  from  the  annual  re]^orts  in  which  the  Com- 
missioners ])urported  to  summarize  their  ow?*  former  acts. 

(3)  The  leases  actually  set  out  in  the  only  list  so  given 
(Abst.,  1387-1395)  are  upon  their  faces  instruments  signed  by 
individuals  with  the  words  “President”  and  “Secretary”  a])- 
])ended  to  two  of  the  names.  They  are  not  signed  by  the  Canal 
Commissioners  of  Illinois,  nor  by  “The  Canal  Commissioners.” 

(See  statement  of  objection,  Abst.,  ])]).  1387-8.) 

(4)  The  leases  so  ]mt  in  evideiu'e  in  a lunp)  may  each  one  he 
unlawful  for  the  same  reasons  as  the  contracts  in  the  case  at  har. 
They  may  each  he  beyond  the  power  of  the  Canal  Commissioners. 
Many  of  them  obviously  are  so  For  instance,  the  lease  of  a mile 
and  a half  of  the  canal  stri])  in  Snyder  E.\hihit  20  (Abst.,  1388) 
to  the  Illinois  Steel  Company. 

The  wrongful  leasing  of  the  90-foot  stri])  in  this  instance  is 
not  justifiable  by  othei*  leases  of  the  90-foot  stri])  either  i*ightful 
or  wrongful. 


See  aiillioi-ilies  eited  in  Division  One  as  to  the  imlawfiilness 
ot*  leases  of  tlie  l)0-foot  strip,  and  in  Division  Four,  Part  11  as  to 
res  inter  alios.  See  also,  tlie  treatment  of  res  inter  alios  of  Charles 
F.  Chamherlayne,  Fsq.,  in  17  Cyc.  of  L.  & P.,  pp.  274-289  and 
cases  there  cited,  statinp^  the  grounds  upon  which  such  evidence  is 
excluded  and  the  exceptional  cases  when  it  is  pro})erly  admitted. 

2).  The  court  erred  in  receiving: 

(a)  Lists  of  numerous  alleged  acts  hy  the  Canal  Commission- 
ers in  selling  other  parts  of  the  90-foot  strip; 

(h)  Sales  of  other  lands  bordering  rivers  which  were  claimed 
to  convey  parts  of  the  river  bed;  and 

(c)  Lists  of  unsold  canal  lots. 

Instances  of  such  acts  in  class  (a)  are  given  at  pages  1415- 
1419  of  the  abstract. 

Instances  of  such  acts  in  class  (b) — as  well  as  of  sales  of  other 
lands  bordering  rivers, — are  given  on  pages  1294-1296  of  the  ab- 
stract; also  at  pages  1606-1611  of  the  abstract;  also  at  page  1712 
of  the  abstract. 

Instances  of  such  acts  in  class  (c)  viz:  lists  of  alleged  unsold 
canal  lots,  were  offered  and  received,  Abstract  pages  1165,  1166, 
1167 ; also  Abst.,  pp.  1331-1337 ; also  Abst.,  pp.  1414  et  seq. 

(a)  The  admission  of  proof  of  sales  of  other  parts  of  the  90- 
foot  strijD  by  these  same  Commissioners  in  1907  was  erroneous. 
In  1899  such  states  were  forbidden  by  the  statute  by  Eev.  Stat., 
Ch.  19,  Sec.  8,  Cl.  8,  as  amended  by  the  Act  of  April  21,  1899  (4 
Starr  & Curtis,  Ch.  19,  p.  90). 

In  1907  when  the  sales  occurred  the  law  had  been  changed 
again  by  the  Act  of  May  16,  1905  (L.  1905,  pp.  81-83).  Appar- 
ently the  law  had  been  changed  by  the  Act  of  1905  to  permit 
some  sales  and  not  others.  Acts  thereunder  were  wholly  ir- 
relevant to  the  question  whether  the  sale  of  1904  of  a perpet- 
ual easement  was  valid. 

(b)  Proofs  of  sales  by  the  Canal  Commissioners  at  other  times 
in  Chicago  or  other  parts  of  the  State  of  lands  bordering  streams, 
such  as  were  put  in  evidence  by  the  defendant  (Abst.,  1294-6,  1606- 
11  and  1712)  were  apparently  offered  on  the  theory  that  they 


wore  so  many  |)raeti(*al  (‘oiislnic, lions  of  llio  law  by  Ukj  (Unn- 
inissioners  lliemselves. 

AVe  deny  their  eompetency  for  that  or  any  other  purpose. 
The  Canal  Commissioners  and  Trustees  were  not  the  judiciary. 

Their  deeds  show  notliing  on  the  subject  of  what  the  law  is. 

Many  of  these  tracts  were  in  the  City  of  Chicago  where,  from 
time  to  time,  the  law  has  contained  special  provisions  con- 
cerning sales  of  land  different  from  canal  lands  in  the  rest  of 
the  State.  Subdivisions  there  stood  on  a different  footing  (See 
Diederich  v.  Rose,  133  111.  App,.  384;  228  111.,  610).  It  could  only 
confuse  the  court  to  introduce  indiscriminately  such  sales  of  river 
lands  on  the  Chicago  Eiver  and  in  the  Canal  Subdivisions,  and 
impose  on  the  court  the  burden  of  chasing  down  the  different 
changes  in  the  law  concerning  canal  lands  in  Chicago  in  order  to 
show  that  they  have  nothing  to  do  with  lands  on  the  Des  Plaines 
Eiver  in  Grundy  County. 

(A  few  instances  of  such  special  provisions  concerning  sales 
in  Chicago  will  be  found  in  the  Acts  of  March  2,  1837  (Canal 
Comp.,  39,  41) ; Act  of  July  31,  1837  (Canal  Comp.,  pp.  49-50) ; 
Act  of  February  17,  1841  (Canal  Comp.,  p.  72)  ; Act  of  Feb- 
ruary 27,  1841  (Canal  Comp.,  p.  74) ; Act  of  February  27, 
1845  (Canal  Comp.,  p.  92) ; Act  of  March  1,  1845  (Canal 

Comp.,  p.  94);  Act  of  March  7,  1872  (Canal  Comp.,  p.  153)  ; 

and  others.) 

So  with  regard  to  lands  in  Ottawa,  Joliet,  Lockport,  etc.,  lists 
of  acts  to  be  filed  showing  special  authorities  concerning  the  sale 
of  canal  property  in  each  of  those  towns. 

The  Act  of  February  15,  1831,  required  the  plat  of  the  town 

of  Ottawa  to  be  so  altered  ‘‘as  to  present  the  front  street  of 

said  town  on  the  verge  of  the  second  hank  of  the  Illinois  River.’' 
And  again,  ^^All  the  ground  between  the  bluff  and  the  Illinois 
River  in  the  town  of  Ottawa  shall  be  reserved  for  sale.”  (Canal 
Comp.,  p.  20.) 

Sales  in  these  other  localities  where  the  law  was  different  or 
may  be  different  at  different  times  are  res  inter  alios. 

The  court  cannot  try  all  the  issues  suggested  thereby.  The 
evidence  should  have  been  excluded. 


138 


(c‘)  Lists  of  unsold  luiids  were  a})})areiitly  offered  for  the  dou- 
l)le  purpose  of  sliowiug-,  fii'st,  that  the  Canal  Commissioners  did 
not  iiK'lude  hits  of  river  bed  therein  and  therefore  did  not  con- 
('eive  tliad  they  owned  tlie  river  l)ed;  and  secondly,  to  show  that 
tliey  did  sometimes  include  ])its  of  tlie  90-foot  strip  in  the  unsold 
lands  and  therefore,  a])parently,  think  they  had  the  rights  to  sell 
the  90- foot  strip. 

Such  theory  is  fallacious  and  does  not  invest  this  evidence  with 
any  coni])etency. 

4.  The  court  erred  in  receiving  in  evidence  the  record  of  a 
judgment  in  favor  of  one  James  McKee  against  the  Canal  Com- 
missioners. (Abst.,  p.  1175.) 

This  was  res  inter  alios. 

5.  The  court  erred  in  receiving  in  evidence  on  behalf  of  de- 
fendant (lovernor  Ford’s  deed  to  the  Canal  Trustees  (Abst.,  p. 
1301),  the  Canal  Trustees’  lie])ort  (Abst.,  pp.  1314-1326),  and  the 
release  deed  by  the  Canal  Trustees  (Abst.,  ])p.  1326-8). 

Much  other  evidence  of  the  same  sort  about  the  Canal  Com- 
missioners and  Trustees  in  their  dealings  with  strangers  was 
erroneously  received  in  evidence. 

Among  such  items  were  the  Canal  Commissioners’  Keport  of 
1825  ( Abst.,  pp.  1067-1073),  the  report  of  Post  & Paul,  in  an 
imperfect  condition  with  reference  to  maps  and  diagrams,  which 
were  not  ])roduced,  all  dated  December  25,  1824  (Abst.,  pp.  1073- 
1090),  passages  from  messages  from  Governor  Ewing,  1834, 
(Abst.,  p.  1065),  Governor  Duncan  in  1838  (Abst.,  p.  1066),  from 
Governor  Carlin  (Abst.,  j).  1097).  These  items  were  all  erroneously 
received.  They  were  res  inter  alios. 

6.  The  court  erroneously  received  in  evidence  the  stipulation 
of  facts  in  Haven  v.  The  Board  of  Trustees  of  the  Illinois  S 
Michigan  Canal,  made  in  the  Mill  County  Circuit  Court  ‘^October 
Term,  1848”  (Abst.,  pp.  1098-1101)  (reported  5 Gilm.,  548). 

There  it  was  stipulated  thus; 

^Mt  is  also  admitted  that  the  Des  Plaines  River  is  noi 
navigable  in  fact,  although  a portion  of  it  is  declared  to 
be  so  by  act  of  the  legislature.”  (Abst.,  \).  1100.) 


]:vj 

This  sti})uliitioii  is  signed  “1.  N.  P>iiil(nTield,  Ally,  for  Defls.” 
(Al)st.,  p.  1101.) 

Tlio  defondanls  wore  tlie  Board  of  Trustees  of  the  Illinois  and 
Michigan  Canal.  They  were  not  state  officers,  Imt  were  statnloi-y 
mortgagees  of  tlie  state. 

The  admission  of  the  attorney  for  tlie  mortgagees  did  not  liind 
tlie  sovereign  State  of  Illinois. 

See  the  authorities  cited  elsewhere  in  this  brief  (Div.  Four,  Part 
III,  point  I)  tliat  the  stipulation  to  a state  of  facts  in  Drnley  v. 
Adam,  by  the  Canal  Commissioners  Lessee  did  not  bind  the  State 
in  other  proceedings. 

The  navigability  of  the  lies  Plaines  Eiver  was  not  a subject 
upon  which  the  Canal  Trustees  were  authorized  by  the  State  to 
make  admissions. 

The  admission  by  the  Canal  Trustees  was  self-serving.  They 
desired  to  dam  the  river  to  use  its  water  for  their  canal ; the  other 
party  desired  to  dam  the  river  to  nse  its  water  for  a mill.  The 
admission  was  mutually  self-serving.  They  united  in  denying  the 
rights  of  the  people  for  tlie  pur]^oses  of  that  case.  Such  self- 
serving  statements  are  not  admissible  against  the  ces  que  in  trust. 

Renham  v.  Hall  131  N.  Y.,  IGO. 

Bragg  v.  Geddes,  98  111.,  89. 

Buck  V.  Maddock,  1G7  111.,  219  (Admissions  of  a Guar- 
dian ad  Litem)  (Admissions  of  a procliciu  ami). 

The  declai'ations  of  a trustee  inpiairing  the  rights  of  a bene- 
ficiary are  incompetent  against  the  beneficiary. 

Thomas  v.  Boaimau,  29  111.,  42G. 

See  also  Unify  Co.  v.  Eqaitahle  Trust  Co.,  201-  111.,  595;  affirm- 
ing 107  111.  A])p.,  449,  holding  that  statements  by  the  trustee  do 
not  bind  the  cestui. 

There  is  no  theory  on  which  an  agreed  statement  of  facts  is 
admissible  in  a suit  between  other  independent  ])ai*ties  merely  be- 
cause the  subsequent  suit  relates  to  the  same  subject. 

Etling  v.  Scott,  2 Johnson  (N.  Y.),  157. 


140 


7.  The  eoiirt  eiToiieonsly  received  tlie  opinions  of  laymen  as  if 
th(\v  were  experts. 

This  was  true  of  many  of  the  old  settlers  called  by  the  defend- 
ant, e.  g.,  the  following: 

Alexander  (Abst.,  pp.  508-9). 

AViiliams  (Abst.,  p.  523). 

Ibirt  (Abst.,  p.  572). 

Bowers  (Abst.,  p.  604). 

Collins  (Abst.,  ]).  614). 

Killmer  (Abst.,  p.  626). 

Other  similar  cases  occur,  bnt  these  are  enough. 

Tjiese  opinions  were  incompetent. 

8.  The  court  erred  in  receiving  on  cross-examination  the  opin- 
ion of  the  State’s  witness,  Clement,  who  was  familiar  with  the 
river,  but  not  an  expert  on  navigation  (Abst.,  pp.  896-7) ; — and 
who  said  on  re-direct  ‘‘I  don’t  know  exactly  what  navigability 
means  to  tell  the  truth.  I have  no  opinion”  (Abst.,  p.  399),  and 
denied  the  motion  of  the  complainant  to  strike  out  the  opinion. 
(Abst.,  pp.  397,  398,  399,  400.)  This  was  error. 

9.  The  court  erred  in  receiving  in  evidence  the  letter  from  Lt. 
Col.  W.  TI.  Bixby  to  Gen.  A.  McKenzie,  Chief  of  Engineers,  dated 
March  27,  1906,  and  by  Eobert  Shaw  Oliver,  Assistant  Secretary 
of  IVar  to  Charles  A.  Afunroe,  dated  June  7,  1906.  (Abst.,  pp. 
1296-1301.) 

These  letters  set  out  that  Lt.  Col.  Bixby,  at  Chicago,  had  rec- 
ommended that  ‘‘The  Hon.  H.  AI.  Snapp  and  Air.  Charles  A.  Alun- 
roe  be  informed  that  the  AVar  Department  will  waive  any  and  all 
objections  that  it  may  have  to  the  progress  of  such  water-power 
dam  construction  as  proposed  by  Air.  Alunroe’s  letter  of  Alarch 
20,  1906,  and  its  enclosures,  provided  that  he,  on  the  part  of  the 
power  dam  owners,  agrees”  to  several  important  items  for  the 
protection  of  the  United  States  Government.  They  further  show 
that  Air.  Oliver  acknowledges  a letter  from  Air.  Alunroe  dated 
June  5,  1906,  enumerating  some  fresh  conditions,  and  said  “If 
these  conditions  are  complied  with  in  the  opinion  of  the  Chief  of 
Engineers,  LT.  S.  Army,  concurred  in  by  this  de])artment,  the  work 


141 


proj,)()se(l  is  in  geiicM-nl  liannony  with  tlio  woi'k  of  llui  iniprovcMrunit 
roeoimiioiidod  by  tho  I^oard  of  Fnii>'iii(‘ors  * * '*  in  its  I'oport 
* * * printed  as  House  Doeninent  No.  2(h],  b9th  (.hni^^i-ess, 
First  Session.  Inasninelp  liowever,  as  Congress  lias  not  as  yet 
authorized  the  improvement  of  this  river,  this  department  does 
not  deem  it  expedient  to  take  fnrtlier  and  definite  action  in  the 
matter  of  approving  the  plans. 

(To)  Charles  A.  Munroe,  Very  respectfully, 

The  Kookery,  Robert  Shaw  Oliver, 

Chicago,  Illinois.  Assistant  Secnetanj  of  Wav.’" 

(Abst.,  p.  1301.) 

The  admission  of  these  letters  was  error. 

The  letters  of  Mr.  Miinroe  of  March  16  and  March  20,  with  the 
three  blue-prints  accompanying  the  same,  upon  which  the  opin- 
ion is  based,  were  not  produced. 

The  identity  of  what  was  submitted  by  Congressman  Snapp  and 
Mr.  Munroe  to  Mr.  Bixby  with  the  work  now  being  done  by  de- 
fendant is  not  shown. 

The  letters  refused  to  give  a federal  ])ermit  for  the  work  pro- 
posed by  Munroe ’s  letters  of  1906. 

As  a consolation  to  the  disappointed  a])i)licant,  Oilver  assures 
him  that  McKenzie  is  of  opinion  that  the  ])lan  in  Munroe ’s  letters 
and  blue-prints  (not  produced)  is  in  rjeueral  hannony  icitli  the 
tvork  of  improvement  recommended  in  Document  263. 

This  is  irrelevant  and  incompetent  against  the  State  of  Illinois. 

The  State  called  Gen.  iMcKenzie  as  a witness.  Defendant  in 
cross-examination  (piestioned  him  about  this  correspondence  and 
he  reiterated  that  no  peiinit  had  been  granted.  (Abst.,  pp.  173, 
180.) 

The  admission  of  the  letters  was  error. 

10.  The  Court  erred  in  receiving  the  testimony  of  Munroe 
(Abst.,  pp.  1611-13)  and  the  trust  deed  offered  and  received  with 
his  testimony  (Abst.,  pp.  1613,  1712,  1854,  1854a,  h)  as  to  the  ex- 
penditure of  money  by  Munroe,  his  negotiations  with  and  sale  to 
defendant  company  and  the  making  of  trust  deed  and  sale  of  bonds 
by  defendant.  (Abst.,  pp.  1613,  1713,  1854-1854a,  h.)  All  these 


142 


were  res  inter  alios  and  irrelevant,  incompetent,  immaterial,  and 
not  the  best  evidence. 

And  for  these  reasons  we  res))ectfnlly  submit  that  the  decree 
below  should  be  reversed. 

R e s })ec t f u 1 1 y submitted, 

WiLUTAM  H.  Stead, 

Attorney  General. 
\¥alter  Keeves, 

Merritt  Starr, 

Special  Counsel  for  The  People. 

Peck,  Miller  & Starr, 

Peeves,  Osborn  & Griggs, 

Of  Counsel  for  The  People. 


IN  THE 


ORIGINAL  RECORD  RETURNED  TO 
October  Term,  A.  D.  1908, 
AND  CAUSE  CONTINUED  TO 
February  Term,  A.  D.  1909. 


PEOPLE  OF  THE  STATE  OF  ILLINOIS, 
ex  rel.  CHARLES  S.  DENEEN,  Gover- 
nor, and  WILLIAM  H.  STEAD, 
Attorney  General, 

Appellant  y 

vs. 

ECONOMY  LIGHT  & POWER 
COMPANY, 

Appellee. 


CHANCERY. 

Appeal  from 

Circuit  Court, 

Grundy  County. 


Honorable  Julian  W.  Mack, 
(temporarily  sitting  as  Judge  of 
said  Court  at  the  request  of 
Honorable  Samuel  C.  Stouqh, 
Judge  of  said  Court),  Judge, 
Presiding. 


ARGUMENT  FOR  APPELLANT 


AKGUMENT. 


PRELIMINARY. 

The  Governor  and  Attorney  General  Have  the  Eight,  Power  and 
Duty  to  Maintain  This  Proceeding. 

I.  THE  ACTS  OF  THE  LEGISLATURE  ARE  COMPLETE  AUTHORITY  FOR  THIS 

PROCEEDING. 

These  acts  are  two,  viz. : 

(1)  The  joint  resolution  of  the  Legislature  November  27,  1907, 
which  reads  as  follows:  (Laws  of  Illinois,  1907-8;  Adjourned  Ses- 
sion, pp.  101-2.) 

‘‘Whereas,  The  Canal  Commissioners  appointed  under 
and  by  virtue  of  ‘An  Act  to  revise  the  law  in  relation  to  the 
Illinois  and  Michigan  Canal,  and  for  the  improvement  of  the 
Illinois  and  Little  Wabash  Rivers,’  approved  March  27,  1874, 
in  force  July  1, 1874,  have  at  various  times  heretofore  executed 
leases  of  water  power  and  water  privileges  to  private  indi- 
viduals and  corporations,  under  and  by  virtue  of  the  powers 
granted  to  said  Commissioners  by  Section  8 of  the  above  en- 
titled Act,  and  that  among  the  said  leases  were  certain  alleged 
leases  or  agreements  to  Harold  T.  Griswold,  dated  September 
2,  A.  D.  1904,  purporting  to  grant  and  convey  certain  rights 
and  privileges  in  and  to  the  waters  and  water  power  of  the 
Des  Plaines  and  Kankakee  rivers ; and, 

“Whereas,  The  said  Harold  T.  Griswold  or  his  assignees, 
by  virtue  of  said  alleged  leases  or  agreements,  are  building  and 
constructing  certain  dams,  controlling  works,  locks  and  other 
obstructions  in  and  across  said  streams,  which  in  the  opinion 
of  this  General  Assembly,  are  destructive  of  the  navigation 
of  said  streams,  and  to  the  disadvantage  of  the  State  of  Illi- 
nois ; and, 

“Whereas,  The  Sixth  clause  of  Section  3,  (8)  of  said  Act, 
provides,  among  other  things,  as  follows : 

“ ‘All  leases  of  water  power  and  extensions  thereof  shall  be 
subject  to  the  right  of  the  commissioners  to  resume  witlioiit 
compensation  to  the  lessee  the  use  of  any  such  water  ]>ower 
for  the  purposes  of  the  canal,  and  also  wholly  to  abandon  or 


2 


destroy  tlie  woi-k  1)y  llic  eonstnietion  of  wliieh  tlie  water  priv- 
ilege shall  liave  been  created  whenever,  in  the  opinion  of  the* 
Legislature,  such  w^oi'k  shall  cease  to  be  advantageous  to  the 
State’;  and, 

^‘WiiFJUvAS,  The  construction  of  sucli  dams,  controlling- 
works,  locks  and  other  obstructions  being  erected  and  con- 
structed by  the  said  Harold  T.  Griswold,  or  his  assigns,  have 
ceased  to  be  advantageous  to  the  State,  and  that  such  water 
power  and  water  privileges  purporting  to  have  been  granted  in 
and  by  virtue  of  said  alleged  leases  or  agreements  are  neces- 
saiy  for  the  purpose  of  the  canal ; therefore,  be  it 

‘ ‘ Hesolved,  by  the  House  of  IIepresentatives,  the  Sen- 
ate, Concurring  Therein.  That  said  Canal  Commis- 
sioners are  hereby  empowered  and  directed  to  cancel 
and  annul  said  alleged  leases  or  agreements  and  any 
and  all  extensions  thereof  and  to  resume  all  such  water  power 
and  water  privileges  therein  purported  to  have  been  granted 
to  the  said  Harold  T.  Griswold,  by  the  said  Canal  Commission- 
ers, on  September  2,  A.  D.  1904,  and  that  said  water  power 
and  water  privileges  be  restored  for  the  purpose  of  the  canal 
and  that  all  such  dams,  controlling  works,  locks  and  other  ob- 
structions therein  existing  for  the  purpose  of  creating  such 
water  power  and  water  privileges  be  forthwith  abandoned  and 
destroyed  by  such  Canal  Commissioners. 

Adopted  by  the  House,  November  27,  1907. 

‘ ‘ Concurred  in  by  the  Senate,  November  27, 1907.” 

(2)  The  Act  of  December  6,  1907  (Laws  of  Illinois,  1907-8 ; Ad- 
journed Session,  pp.  32-33),  which  is  as  follows: 
and 

An  Act  recognizing  the  Des  Plaines  and  Illinois  Rivers  as 
navigable  Streams,  and  to  prevent  obstructions  being  placed 
therein,  and  remove  obstructions  therein  now  existing. 

Section  1.  Be  it  enacted  by  the  People  of  the  State  of  Illi- 
nois, represented  in  the  General  Assembly,  That  the  Des 
Plaines  and  Illinois  Divers  throughout  their  courses  from  and 
below  the  water  power  plant  of  the  main  channel  of  the  Sani- 
tary District  of  Chicago,  in  the  Township  of  Lock- 
port,  at  or  near  Lockport,  in  the  County  of  Will, 
are  hereby  recognized  as  and  are  hereby  declared  to 
be  navigable  streams;  and  it  is  made  the  special  duty 
of  the  Governor  and  of  the  Attorney  General  to  prevent  the 
erection  of  any  structure  in  or  across  said  streams  without  ex- 
plicit authority  from  the  General  Assembly;  and  the  Governor 
and  Attorney  General  are  hereby  authorized  and  directed  to 
take  the  necessary  legal  action  or  actions  to  remove  all  and 
every  obstruction  now  existing  in  said  rivers  that  in  any  wise 
interferes  with  the  intent  and  purpose  of  this  act. 


‘‘Section  2.  ]Vliercas,  vXn  emergency  exists;  Uiis  Act  shall 
be  in  force  and  effect  and  after  its  passage. 

Approved y I)ecenil)er  (i,  1907.” 

II.  THE  COMMON  LAW  AS  TO  THE  ATTORNEY  GENERAl/s  OFFICE  AUTHOR- 

IZES THIS  PROCEEDING. 

The  Attorney  Generalship  is  an  ancient  common  law  office.  In 
Illinois  the  Attorney  General  retains  all  the  ancient  common  law 
powers  of  his  office.  He  has  not  been  divested  of  that  power  by 
acts  giving  authority  to  the  Canal  Commissioners  or  other  officers. 

III.  THE  CONSTITUTIONS  AND  LEGISLATION  OF  THIS  STATE  PRESERVE 

THIS  COMMON  LAW  AUTHORITY. 

Constitution  of  1818,  Art.  II,  Sec.  25. 

Constitution  of  1870,  Art.  V,  Sec.  1. 

“An  Act  in  regard  to  Attorneys  General  and  State’s  Attor- 
neys” (Act  of  March  26, 1874),  Eev.  St.,  Chap.  14,  Sec.  4. 

Hunt,  Attorney  General,  v.  Horse  S Dummy  Railroad,  20 
111.  App.,  282,  affirmed  on  this  point  121  111.,  638-642. 
McCartney,  Attorney  General,  v.  C.  S E.  Railroad  Com- 
pany, 112  111.,  611. 

Attorney  General  v.  Woods,  108  Mass.,  436. 

Attorney  General  v.  Jamaica  Pond  Aqueduct  Corpora- 
tion, 133  Mass.,  361. 

The  original  prerogative  powers  of  the  Attorney  General  in- 
clude the  power  to  invoke  the  protection  of  the  court  against 
idtra  vires  contracts  by  Commissioners. 

Attorney  General  v.  Forbes  (Cottenham,  Lord  Chancel- 
lor), 2 Myline  & Craig,  123,  and  notes  to  American  Edi- 
tion. 

Freiven  v.  Letvis,  4 Mylitie  & Craig,  249. 

IV.  THE  CANAL  ACT  PROVIDES  THAT  THE  CANAL  COMMISSIONERS  SHALL 

NOT  BE  SUED. 

THEREFORE  IS  WAS  NOT  PRACTICABLE  AND  NOT  NECESSARY^  TO  MAKE  THE 
CANAL  COMMISSIONERS  PARTIES. 

And  here  we  may  notice  that  other  suggestion  contra  made 
by  the  Trial  Court,  viz.,  that  the  acts  of  the  Canal  Commissioners 


4 


(*()ul(l  not  1)0  tliiis  atta(*ko(l  u'iihout  HKikiur/  tlieni  pa)  ties  (see  siig- 
g’estioii  ot  Trial  (\)urt  (Trans.,  ])}).  2,‘)3()-)>2;  Abst.,  ]).  788).  Tlie 
reply  is  that  it  is  iieitlier  necessary  nor  possible.  Tlie  (kmal  Act, 
Se(‘tion  .2,  ])rovi(les: 

‘‘For  all  legal  ])urposes  the  said  Cominissioners  shall  l)e 
deemed  officers  of  the  state,  and  all  deeds,  contracts,  writings 
and  acts  may  be  made  and  suits  prosecuted  by  them,  in  the 
name  of  ‘The  Canal  Commisisoners,’  but  they  shall  not  he 
consklered  as  a distinct  corporation,  or  he  liahle  to  t)e  sited/ ^ 
(Rev.  Stat.,  Ch.  19,  Sec.  8.) 

This  ])rovision  of  the  Act  of  1874  (still  in  force)  is  a reversal 
of  the  former  policy  of  the  State,  beginning  with  the  Act  of  Jan- 
uary 22,  1829,  Section  10,  which  provided: 

“Section  10.  Said  Commissioners  may  sue  and  be  sued,  and 
defend  in  the  name  of  ‘The  Board  of  Commissioners  of  the 
Illinois  and  Michigan  Canal.’  ” 

(Attorne}^  General  Stead’s  Compilation  of  Canal  Laws,  p.  17) 
continued  by  Section  11  of  the  Act  of  February  10,  1835,  which 
provided : 

“The  said  Board  of  Commissioners  is  hereby  constituted  a 
body  politic  and  corporate,  with  full  power  and  authority  in 
their  corporate  name,  to  contract  and  be  contracted  with,  sue 
and  be  sued,  defend  and  be  defended,  plead  and  be  im- 
pleaded,   

(Id.,  p.  24-5.) 

This  was  repeatedly  called  to  the  attention  of  the  trial  court. 
(Abst.,  pp.  788,  1346-7.) 

This  reversal  of  policy  prevented  the  State  from  making  the 
Commissioners  parties  defendant  to  this  information.  Being  for- 
bidden by  law,  it  certainly  was  unnecessary. 

Xo  attack  is  made  on  the  intentions  or  motives  of  the  Canal 
Commissioners,  but  their  acts  were  plainly  beyond  their  power 
contrary  to  public  policy,  against  the  interests  of  the  State  and 
void. 


])IVISION  ONE. 


The  Canal  Commissioners^  Contracts  Are  Void. 

SUMMARY  OF  THE  POSITION  OF  THE  STATE  IN  RESPECT  TO  TFIE  CANAL 
COMMISSIONERS^  CONTRACTS. 

The  state  maintains  that  the  Canal  Commissioners  have  a high 
public  duty,  to  maintain  in  its  integrity  the  policy  of  the  State  in 
respect  to  the  canal  and  the  canal  lands  and  property.  They  hold 
a public  office  which  is  a public  trust.  It  is  their  duty  to  see  that 
the  State  shall  sutler  no  harm  in  respect  to  the  res  committed  to 
their  charge. 

This  duty  they  have  failed  to  perform.  These  policies  they  have 
failed  to  maintain.  Each  of  these  principles  of  public  policy  was 
violated  by  the  contracts  held  by  appellee. 

The  State  maintains  that  the  Canal  Commissioners  had  no  juris- 
diction to  grant  any  right  to  maintain  a dam  across  the  Des 
Plaines  River. 

That  this  contract,  Exhibit  A,  called  the  ^‘Elowage  Contract,’’ 
which  gave  the  right  to  flood  in  perpetuity  the  canal  embankment, 
the  90-foot  strip  and  the  canal  riparian  lands,  was  a contract  which 
gave  that  right  without  any  limit  of  time. 

That  a contract  granting  a right  to  flood  lands  without  limit  of 
time,  grants  the  right  to  flood  them  in  perpetuity,  and  that  this  is 
a sale  of  land. 

To  put  the  perpetuity  beyond  dispute,  the  contract  in  question 
contained  the  further  provision  that  the  grantee  shall  perpet- 
ually thereafter  maintain  the  same  in  good  condition.”  (Abst., 
p.  31.) 

This  was  a sale  of  land. 

It  was  a private  sale,  without  bidding,  and  after  the  land  had 
been  advertised  for  sale  and  then  withdrawn  from  sale. 

The  law  forbids  a sale  except  upon  advertisement  and  to  the 


liigliest  bidder  (Canal  Act,  ’99,  Sec.  8,  Cl.  8),  and  tliis  sale  was  in 
violation  of  law. 

The  sale  was  followed  by  a lease  of  the  naked  legal  title,  sub- 
ject to  the  right  theretofore  granted  to  keep  the  property  forever 
covered  with  water. 

The  lease  was  a lease  for  20  years,  with  a right  to  renew  for  20 
more,  while  the  law  forbids  the  Commissioners  to  make  any  lease 
for  a term  of  more  than  20  years. 

The  subject  of  this  lease  is  in  part  the  riparian  tract  of  canal 
lands  between  the  river  and  the  canal;  and  in  part  the  90-foot 
strip  and  embankment  of  the  canal,  up  to  the  edge  of  the  tow-path, 
which  leased  strip  embraces  between  35  and  40  acres. 

The  riparian  tract  is  frequently  referred  to  in  the  evidence  as 
the  so-called  ‘‘17-acre  tract.”  Its  area  is  not  17  acres,  but  40  acres, 
figured  to  the  margin  of  the  river,  and  if  the  area  of  the  river  bed 
be  included  (as  the  defendant  claims  the  right  to  do),  its  area  is 
58.92  acres.  It  was  carried  on  the  books  of  the  Canal  Commis- 
sioners under  one  description;  it  was  leased  and  sold  by  another 
and  a different  description,  whereby  the  error  in  its  acreage  crept 
in.  The  error  was  against  the  State.  (Abst.,  pp.  224-230,  271-272.) 

The  Canal  Commissioners  have  no  implied  powers.  They  are 
the  special  delegates  and  trustees  of  a restricted  power  to  control 
and  manage  the  canal  and  its  property,  to  make  certain  sales  to 
the  highest  bidder  of  property  not  needed  for  the  canal,  and  to 
protect  and  retain  the  property  that  is  needed  for  the  canal ; they 
are  forbidden  to  sell  the  90-foot  strip,  and  this  sale  of  an  interest 
in  the  90-foot  strip  was  in  violation  of  the  statute  which  forbids 
such  sale. 

This  flowage  contract  in  terms  authorizes  the  invasion  of  the 
canal,  by  giving  the  right  to  enter  in  and  upon  it  and  fill  into  it ; 
and  a beginning  has  already  been  made  by  the  defendant,  of  such 
filling  in,  in  violation  of  the  obligation  of  the  Commissioners. 

The  flooding  of  the  90-foot  strip,  embankment  and  tow-path, 
whether  permanently  or  for  20  years,  is  inherently  dangerous  to 
the  canal. 

The  leases  in  question,  which  the  Court  below  held  authorized 


7 


such  submergence  for  20  years,  are,  in  terms,  assignable  to  iri*e- 
sponsible  parties  without  the  Canal  Commissioners’  consent. 

The  flowage  contract  authorizes  the  holder  to  dismember  the 
Kankakee  Feeder,  which  flowed  northwardly  from  the  south  and 
carried  the  water  of  the  Kankakee  River  across  the  Des  Plaines 
and  emptied  into  the  canal.  The  flowage  contract  authorizes  its 
holder  to  cut  off  and  remove  so  much  of  the  Feeder  as  carries  the 
Kankakee  waters  across  the  Des  Plaines  and  north  of  the  Des 
Plaines  into  the  canal ; and  the  Feeder  lease  authorizes  the  holder 
to  use  the  balance  of  the  Feeder  in  feeding  the  waters  of  the  Kan- 
kakee into  the  water-power  pool. 

This  is  an  appropriation  to  private  uses  of  public  property. 

The  flowage  contract  was  made  with  Griswold  and  his  assigns 
independent  of  any  consent  to  assignment  by  the  Canal  Commis- 
sioners. 

The  lease  of  the  90-foot  strip  and  riparian  tract  was  made  with 
Griswold  and  his  assigns  independent  of  any  such  consent,  but  was 
made  expressly  subject  to  the  rights  of  the  holder  of  the  flowage 
contract. 

This  separated  the  two,  so  that  one  could  be  assigned  to  A and 
the  other  to  B.  They  should  l)e  considered  as  distinct  contracts, 
and  each  as  void. 

But,  if  construed  together,  they  amount  to  a lease  of  water- 
])ower.  The  statute  forbids  any  leases  of  water-power  except 
after  advertising  and  to  the  highest  bidder.  There  was  no  such 
advertising  or  bidding  for  tliis  water-])ower  lease. 

The  sale  of  the  riparian  tract  was  conducted  by  an  employe  of 
the  Commissioners,  in  the  absence  of  all  the  Commissioners  and 
without  any  authorization,  and  is  void. 

The  deed  professedly  simply  carries  into  effect  the  void  sale, 
and  is  therefore  also  void.  The  deed  expressly  renews  the  void 
covenants  of  the  Canal  Commissioners  in  the  void  flowage  contract 
and  lease,  and  is  therefore  void. 

The  deed  is  made  expressly  subject  to  the  reserve  of  the  flowage 
right. 


s 

l)ut  that  flowage  riglit  never  left  the  Canal  Commissioners,  and 
therei'oi-e  the  grantee  ac(]uired  no  right  to  flood  such  lands. 

The  entire  series  of  contracts  is  against  public  policy  and  in  ex- 
cess of  the  powers  of  the  Canal  Commissioners,  and  void.  The 
leading  part  and  object  is  that  of  maintaining  the  dam  and  flowing 
lands  in  perpetuity,  which  is  void.  Where  the  leading  part  and 
object  of  a contract  is  void,  no  part  of  it  will  be  upheld.  Con- 
tracts growing  out  of  and  connected  with  an  illegal  transaction 
are  themselves  also  illegal. 

The  entire  series  of  contracts  leading  up  to  the  deed  was  a series 
of  devices  and  instruments  which  were  adapted  to,  and  did,  defeat 
free,  open  and  competitive  bidding  at  the  sale.  The  sale  was  ad- 
vertised to  be  subject  to  the  rights  conferred  by  the  ftoivage  con- 
tract and  lease.  Nobody  was  going  to  bid  for  a piece  of  land  that 
somebody  else  could  overflow  in  perpetuity  with  water  sixteen  feet 
deep,  and  of  course  nobody  did  bid  except  the  holder  of  the  flowage 
contract  and  lease.  The  entire  series  of  contracts  was  adapted 
to  and  did  defeat  any  free,  open  and  competitive  bidding  at  the 
sale. 

The  contracts  were  attempted  evasions  of  the  statutory  prohi- 
bitions against  the  sale  of  the  90'-foot  strip,  against  the  making  of 
a lease  of  either  land  or  water  power  for  more  than  20  years,  and 
against  any  sale  except  upon  free,  open  and  equal  competitive 
bidding. 

The  Court  below  by  its  rulings  upheld  several  of  these  princi- 
ples of  public  policy;  but  the  decree  which  it  entered  is  inconsist- 
ent with  its  opinion.  The  Court  erred  in  not  carrying  these  prin- 
ciples into  effect  by  its  decree.  The  Court  held  the  flowage  con- 
tract void;  but  it  did  not  decree  it  void,  as  it  should  have  done. 

The  Court  below  held  that  the  renewal  provision  of  the  lease 
vras  void;  but  it  did  not  so  decree. 

The  Court  erred  in  not  decreeing  each  of  the  contracts  void, 
and  erred  in  not  treating  them  in  the  same  way  in  the  decree. 

The  court’s  decree  ignores  the  flowage  contract  altogether. 

As  to  the  renewal  provision  of  the  lease,  the  decree  provides 
that  it  shall  be  without  prejudice  to  other  proceedings  to  obtain 


9 


an  adjudication  of  its  invalidity.  ''Flie  (^)urt  holovv  (Joclarod  it 
was  void.  The  bill  prayed  for  an  injunction  because  it  was  void; 
and  the  bill  prayed  for  general  relief.  The  Court  should  have  de- 
creed it  void;  and  even  if  it  were  right  to  dismiss  the  bill  without 
prejudice  as  to  such  lease,  then  it  should  also  have  dismissed  the 
bill  without  prejudice  as  to  the  flowage  contract. 

The  decree  presents  the  same  inconsistencies  as  to  the  Kanka- 
kee Feeder  lease,  Exhibit  C.  The  Kankakee  Feeder  lease  con- 
tains a similar  renewal  provision.  If  the  dismissal  was  rightly 
made  without  prejudice  to  a future  attack  on  the  land  lease  having 
a renewal  clause,  then  it  should  have  been  without  prejudice  to  the 
same  attack  on  the  Kankakee  Feeder  lease. 

‘‘98.  As  PUBLIC  IMPROVEMENT. — Intimately  connected  with 
the  question  of  improvement  of  navigation  is  that  of 
the  construction  of  canals.  Transportation  facilities  are 
an  absolute  necessity  to  the  development  of  a country.  Be- 
fore the  invention  of  the  locomotive,  the  only  adequate  means 
of  furnishing  it  was  the  water  way.  When  this  existed  in  a 
natural  state  of  capacity  sufficient  to  meet  the  demands  upon 
it,  well  and  good;  but  when  the  natural  water  ways  were  of 
insufficient  capacity,  it  was  usually  regarded  as  a govern- 
mental duty  to  improve  them  so  as  to  furnish  the  needed  facil- 
ities for  intercourse  and  commerce,  and  in  case  there  were  no 
natural  water  ways,  it  was  also  a governmental  prerogative 
to  create  them.  These  artificial  water  courses  are  generally 
known  as  canals,  and  may  be  constructed  for  short  distances 
beside  a natural  water  way  to  avoid  falls  and  rapids,  or  they 
may  be  constructed  for  long  distances  through  sections  of 
country  where  there  are  no  natural  water  courses,  and  the 
water  taken  from  natural  sources  and  turned  into  them  to 
furnish  means  of  transportation.  * * * Such  improve- 

ments, however,  proved  expensive,  and  placed  a burden  of 
taxation  upon  the  people,  and  the  expenditure  of  the  money 
involved  in  their  construction  proved  a severe  strain  on  offi- 
cial honesty,  so  that,  with  the  advent  of  the  railroad,  there 
was  a popular  revolt  against  the  government’s  undertaking 
such  work;  and  it  is  prohibited  now  in  many  constitutions.” 

(1  Farnham,  Waters,  Ch.  VII,  Sec.  98,  pp.  448-9.) 

In  Woodivard  v.  Seeley,  11  111.,  157,  and  164-5,  the  Court  said: 

“In  this  case,  the  license,  while  unrevoked,  authorized  the 
complainants  so  to  erect  their  dam  as  to  overflow  the  land  of 
defendants,  and  released  them  from  the  damages,  to  which 
they  would  otherwise  have  made  themselves  liable  in  so  doing. 


10 


but  did  it  give  them  the  right  to  overflow  the  lands  of  the  de- 
fendants, and  deprive  thefn  of  their  use  perpetually  and  for- 
ever? If  so,  the  license  certainly  carried  with  it  an  interest  in 
the  land,  and  if  the  grant  of  the  interest  was  valid,  the  license 
became  irrevocable.  But  can  such  an  interest  be  granted  by 
parol!  To  hold  that  it  could,  would,  to  use  the  language  in  1 
Sugden  on  Vendors,  80,  be  fin  the  very  teeth  of  the  statute,’ 
which  declares  that  every  contract  for  the  sale  of  lands,  tene- 
ments or  hereditaments,  or  any  interest  in  or  concerning  them, 
for  a longer  term  than  one  year,  shall  be  in  writing.  If  one 
man  can  accpiire  by  parol,  the  right  so  to  use  another’s 
land  as  to  render  it  useless  to  the  owner,  it  will  be  but  taking  a 
short  and  easy  step,  and  going  very  little  further,  to  hold  that 
he  may  acquire  the  title  itself, by  parol  ;/or  ofivhat  avail  is  it  to 
a man  to  have  the  naked  title  to  a piece  of  land,  which  he  can- 
not use,  hut  ivhich,  in  spite  of  him,  another  has  the  right  to 
keep  forever  covered  with  water?  * ^ * In  our  judgment, 

a license  perpetually  to  overflow  the  land  of  the  defendants 
would  create  an  interest  in  it,  and,  therefore,  could  not  be 
granted  by  parol ; consequently  the  license  in  this  case  carried 
with  it  no  interest  and  was  revocable  at  the  will  of  the  party 
granting  it.  ” ^ • * 

In  Wilmington  Water  Poiver  Company  v.  Evans,  166  111.,  548,  at 
557,  the  Court  said : 

^‘It  is  claimed  for  the  award  by  the  appellant,  that  it  vested 
in  the  Kankakee  Company  the  right  to  overflow  the  land  of 
Patrick  Judge,  the  ancestor  of  the  appellees.  Such  right  to 
overflow  is  an  interest  in  land.  It  is  well  settled  that  a parol 
license  or  agreement  giving  such  right  is  within  the  Statute 
of  Frauds,  and  void.  Such  a license  is  revocable  at  any  time. 
{Tanner  v.  Volentine,  75  111.,  624).  In  Woodivard  v.  Seely,  11 
111.,  157,  this  Court  held  that  a license  perpetually  to  overflow 
the  land  of  the  party  granting  such  license  would  create  an 
interest  in  the  land,  and  therefore  that  the  license  could  not 
be  granted  by  parol.  A license  coupled  with  an  interest  in 
land  must  be  in  writing.  The  doctrine  of  the  Woodivard  case 
was  subsequently  endorsed  and  adhered  to  in  the  case  of  St. 
Louis  Nat.  Stock  Yards  v.  Wiggins  Ferry  Co.,  112  111.,  384. 

^‘It  may  be  said  that  the  award  here  is  not  a parol  license 
to  overflow  the  land,  and  does  not  convey  or  purport  to  con- 
vey any  interest  in  land.  But  even  if  it  be  regarded  strictly 
as  an  award  and  not  as  a parol  license,  it  is  pleaded  as  a bar  to 
the  present  suit,  upon  the  ground  that,  by  its  acceptance  by 
both  parties,  the  Kankakee  Company  acquired  a .vested  right 
in  the  lend  of  Jiids^e  amounting  to  a perpetual  easement  to 
overflow  his  land.  A submission  and  award  should  be  in  writ- 
ing where  a writing  is  required  to  pass  the  title  to  the  thing 


in  contest.  {Smith  v.  Dcnujlass,  Ki  Jll.,  .‘>4;  2 Am.  & 

Ency.  of  Law,  2d  ed.,  p.  543).  An  oral  submission  to  ar})i- 
tration  and  an  oral  award  are  valid,  exc^ept  where  an  instru- 
ment in  writing  is  required  to  pass  the  title  to  the  thing  in 
dispute.  A perpetual  easement  to  overflow  land  being  an  in- 
terest in  land  which  requires  an  instrument  in  writing  to  pass 
the  title  to  it,  the  acceptance  of  an  oral  award  cannot  be  said 
to  vest  such  an  interest.  ’ ’ 

In  Cooh  V.  Stearns,  11  Mass.,  533,  at  pp.  536-8  (1814),  the  Court 
(Parker,  C.  J.)  said: 

‘Mt  is  evident,  therefore,  that  the  defendant  claims  a perma- 
nent interest  in  the  plaintitf’s  close,  a right  to  maintain  the 
bank,  dam  and  canal,  which  he  formerly  placed  there  by  con- 
sent, and  to  enter  upon  the  plaintiff’s  close  at  any  time  to 
make  necessary  repairs.  Now,  this  is  an  interest  in  land, 
which  cannot,  by  our  statute  of  1783,  C.  37,  pass  without  deed 
or  writing;  for  all  interests  in  land,  according  to  that  stat- 
ute, whether  certain  or  uncertain,  are  declared  to  be  estates 
at  will,  unless  the  evidence  of  them  exists  in  deed  or  writing; 
and  if  a continuation  of  the  interest  is  intended  for  seven 
years,  it  must  not  only  be  passed  by  deed,  but  the  deed  must  be 
acknowledged  and  registered,  in  the  same  manner  as  is  re- 
quired in  the  transfer  of  a fee.  * * * 

‘‘The  distinction  is  obvious.  Licenses  to  do  a particular 
. act  do  not  in  any  degree  trench  upon  the  policy  of  the  law 
which  requires  that  bargains  respecting  the  title  or  interest  in 
real  estate  shall  be  by  deed  or  by  writing.  They  amount  to 
nothing  more  than  an  excuse  for  the  act,  which  would  other- 
wise be  a trespass.  But  a permanent  right  to  hold  another’s- 
land  for  a particular  purpose,  and  to  enter  upon  it  at  all  times 
without  his  consent,  is  an  important  interest,  which  ought  not 
to  pass  without  writing,  and  is  the  very  object  provided  for 
by  our  statute.  If  the  defendant  had  a license,  from  the 
former  owners  of  the  plaintiff’s  close,  to  make  the  bank,  dam 
and  canal,  in  their  land,  this  extended  only  to  the  act  done,  so 
as  to  save  him  from  their  action  of  trespass  for  that  partic- 
ular act;  but  it  did  not  carry  with  it  an  authority,  at  any  fu- 
ture time  to  enter  upon  the  land.  As  to  so  much  of  the 
license  as  was  not  executed,  it  was  countermandable ; and 
transferring  the  land  to  another,  or  even  leasing  it,  without 
any  reservation,  would  of  itself  be  a countermand  of  the 
license.  For  although  when  one  is  permitted  to  do  certain 
things  upon  the  land  of  another,  an  implied  authority  is  given 
to  enter  upon  the  land  to  do  the  thing,  and  to  repair  it,  if  it  is 
of  a permanent  nature,  yet  the  first  permission  or  license 
must  be  by  grant,  in  order  to  draw  after  it  this  consequence.” 


12 


\ 


In  Mnmford  v.  Whitney,  15  Wendell,  581,  at  393  (1836),  the 
Court  Savage,  C.  J.,  said: 

‘‘If  A agree  with  V>  that  B may  huild  a dam  upon  the  land  of 
A,  or  across  an  island,  as  in  the  present  case,  if  it  is  to  be 
permanent,  or  anything  more  than  a mere  temporary  erec- 
tion, such  an  agreement  is  not  technically  a license.  The  ob- 
ject of  A is  to  grant,  and  of  B to  acquire  an  interest  which 
shall  be  permanent;  a right  not  to  occupy  for  a short  time,  but 
as  long  as  there  shall  be  employment  for  the  water  power  to 
be  thus  created ; can  such  an  interest,  such  a right,  be  created 
by  parol!  As  Mr.  Sugden  says  of  the  case  of  Wood  v.  Lake, 
‘It  appears  to  be  in  the  very  teeth  of  the  statute  which  ex- 
tends generally  to  all  leases,  estates  or  interests/  It  declares 
that  all  leases,  estates,  interests  of  freehold,  or  terms  of  years, 
or  any  uncertain  interests,  of,  in,  to  or  out  of  any  lands,  made 
by  parol,  and  not  in  writing,  shall  have  the  effect  of  estates 
at  will  only.  To  decide  that  a right  to  a permanent  occupa- 
tion of  the  plaintiff’s  land  may  be  acquired  by  parol,  and  by 
calling  the  agreement  a license,  would  be  in  effect  to  repeal 
the  statute.” 

Even  a license  to  erect  a permanent  dam  on  another’s  land,  or 
overflow  another’s  land,  must  be  hy  deed,  for  it  is  the  sale  of  an 
estate  in  land. 

Broivn  v.  Woodivorth,  5 Barb.,  551. 

Hotaling  v.  Hotaling,  5 Barb.,  379. 

Davis  V.  Toivnsend,  10  Barb.,  338;  Id.,  496. 

An  agreement  for  perpetual  flowage  is  an  absolute  sale  of  an  in- 
terest and  right  of  perpetual  possession.  Thus  in  Fitch  v.  Constan- 
tine Hydravdic  Co.,  44  Mich.,  74,  in  that  case  is  stated  by  the  Court, 
Campbell,  J. : 

“It  appears  that  on  the  31st  of  July,  1873,  defendant,  hav- 
ing been  organized  for  hydraulic  purposes,  and  finding  it  nec- 
essary to  build  a dam  in  "the  St.  Joseph  River  to  get  the  requi- 
site facilities,  entered  into  a written  agreement  with  a number 
of  riparian  owners,  including  Fitch,  for  the  purpose  of  ‘ob- 
taining the  right  to  perpetually  flow  such  lands  as  may  be  nec- 
essary to  the  erection  and  maintenance  of  their  water  power 
as  aforesaid.’  The  agreement  proceeded  as  follows:  It  was 
first  provided  that  the  land  owners  would  agree  to  allow  the 
defendants  to  erect  their  dam  and  raise  the  water  until  August 
1,  1874,  without  objection,  and  that  at  that  time  each  should 
convey  the  necessary  right  of  flowage  to  maintain  the  dam  and 
power,  provided  defendants  should  pay  such  damages  as  had 
then  accrued  or  might  accrue,  in  the  manner  specified,  which 


was — Firsts  that  dcreiidants  should,  within  a reasoriahlo  time 
after  the  aetiial  amount  of  damage  (!ould  be  as(*ertained,  and 
before  that  day,  pay  sueh  sum  as  should  be  agreed  upon ; sec- 
ond,  if  not  agreeing,  tliat  they  should  arbitrate  in  accordance 
Avith  the  statute,  the  award  to  fix  the  damages  and  provide  for 
a conveyance;  or,  third,  that  the  lands  might  be  condemned. 

‘‘Articles  of  arbitration  were  thereafter  entered  into,  but 
did  not  fix  any  Court  in  which  judgment  should  be  rendered. 
An  award  was  made  of  one  hundred  dollars,  but  judgment  of 
confirmation  was  vacated  on  the  application  of  Fitch.  The 
award  was  signed  by  one  of  the  two  arbitrators  named  in  the 
agreement  of  submission. 

“Fitch  afterwards  notified  defendants  to  abate  their  dam, 
and  on  failure  thereof  brought  suit.  The  Court  held  he  could 
not  recover,  basing  the  ruling  on  the  arbitration  and  refusal  to 
accept  the  tender  of  the  amount  awarded. 

^ * The  work  which  such  companies  erect  must  nec- 

essarily be  designed  for  permanence,  and  when  they  are  given 
a right  of  flowage,  it  resembles  the  rights  procured  by  other 
corporations,  such  as  railways  and  canals,  of  subjecting  land 
to  permanent  conditions  in  the  use  of  permanent  structures. 
The  ivritten  agreement  already  quoted  provides  for  a perpet- 
ual use,  and  contains  no  clause  of  forfeiture  on  default.  It 
contains  provisions  whereby  the  land  owners  can  obtain  dam- 
ages under  provisions  capable  of  legal  and  equitable  enforce- 
ment. The  damages  are  payable  once  for  ah.  The  agreement 
is  an  absolute  sale  and  right  of  immediate  and  perpetual 
possession,  in  consideration  of  a future  payment.  It  is  in  no 
sense  a license  of  a revocable  character.  It  is  in  its  necessary 
meaning  a grant  as  irrevocable  as  any  other  grant  or  sale  on 
time  and  for  credit.  The  interest  once  granted  is  no  longer 
permissive  but  absolute.’’ 

It,  if  valid,  conveys  an  estate  which  precludes  the  grantor  from 
any  use  inconsistent  with  the  beneficial  exercise  of  the  flowage 
right. 

Phillips  v.  Watuppa  Reservoir  Co.,  184  Mass.,  404,  08 
N.  F.,  848. 

The  interest  purported  to  be  conveyed  by  the  foivage  contract 
is  perpetual.  No  loords  of  inheritance  are  necessary  to  the  crea- 
tion of  a perpetual  right  of,  flowage. 

Cole  V.  Lake  Company,  54  N.  H.,  242. 

Clark  V.  Strong,  105  N.  Y.  App.  Div.,  179. 

Siveetland  v.  Grants  Press  Power  Co.,  46  Oregon,  85. 

Phillips  V.  Watuppa  Reservoir  Co.,  184  Mass.,  404,  68 
N.  E.  Rep.,  Mass,  848. 


So  li  j)ei-i)etiial  riglit  is  conveyed  by  sucli  a contract  conferring 
a rigid  ‘bso  long  as  the  grantee,  liis  heirs  or  assigns,  perform  the 
{'onditions  and  pay  a certain  sum  annually.”  {Tuttle  v.  Harry ^ 56 
C^'onn.,  194;  14  Ath,  209),  or  using  the  words  ‘‘heirs  and  assigns” 
so  long  as  grantor  shall  keep  pits,  etc.,  without  forever’^  (9  Allen, 
Mass.,  159),  and  the  words  “successors  and  assigns  forever,” 
without  “heirs”  (46  Oregon,  85,  supra)  ; and  “as  long  as  the  sec- 
ond party  or  any  of  their  family  own  or  occupy”  (105  N.  Y.  App. 
niv.,  179,  supra) ; create  estates  of  easement  in  fee  (in  the  latter 
cases  determiuahle  fees) ; Imt  perpetual  rights  subject  to  be  di- 
vested, etc. 

So,  a lease  of  the  right  to  draw  water  from  the  canal  of  the 
lessor  to  the  mills  of  the  lessees  “for  and  during  their  pleasure,” 
without  words  of  inheritance  or  other  limit  of  time,  was  held  to 
confer  a right  of  perpetual  enjoyment.  (1874)  Cole  v.  Lake  Co.y 
54  N.  H.,  242. 

A luminous  discussion  of  the  subject  will  be  found  in  the  case 
last  cited. 

The  common-law  rule  requiring  the  word  “heirs”  in  the  crea- 
tion of  an  estate  of  inheritance  by  deed  is  inapplicable  in  creating 
a permanent  easement.  Chappell  v.  New  York,  A.  H.  S H.  R.  Co., 
62  Conn.,  195 ; 24  Ath,  997.  (A.  D.  1892.) 

H and  T entered  into  a written  agreement,  under  seal,  “that  the 
said  H agrees  and  consents  for  the  said  T to  back  water,  if  neces- 
sary, up  into  his  field,  on  condition  that  said  T will  allow  the  said 
H as  much  woodland  along  the  line  fence  on  the  south  side  of  the 
river.  Said  T is  allowed  to  raise  a dam  eight  or  nine  feet  high. 
This  agreement  to  remain  good  as  long  as  T keeps  up  a mill  at 
the  W place;  afterwards,  to  be  null  and  void.” 

Held,  that  the  easement  conferred  on  T by  the  agreement  ex- 
tended to  his  heirs,  though  the  agreement  contained  no  words  of 
inheritance.  Hall  v.  Turner,  110  N.  Car.,  292;  14  S.  E.,  791  (N. 
Car.,  1892.) 

So  it  is  held  that  a contract  by  which  a land  owner  gives  to  an- 
other the  right  to  convey  water  from  a spring  is  not  a lease. 

The  Court  said : 

“The  parties  have  also  therein  referred  to  the  rights  grant- 


15 


0(1  or  MgTOod  upon  as  a ‘ privil(‘^>^o.’  If  llio  a^>rooin(;rii  is  oon- 
sidcrod  as  a more  li(!Oiisc  it  was  revoked  })y  tlie  death  of  the 
licensor  even  if  there  was  a (lonsideration  paid  therefor.  ( Wise- 
man  v.  Liiclx singer,  84  N.  Y.,  31;  Echerson  v.  Crippen,  110  id., 
585;  Cronlxhife  v.  Cronhliite,  94  id.,  323.)  We  tJmik  the  agree- 
ment icas  an  attempt  to  convey  all  easement  in  the  grantor\s 
lands.  Tlie  right  to  lay  pipes  over  real  property  and  convey 
water  from  a spring  thereon  is  an  easement  for  the  benefit  of 
the  dominant  estate.  {Nellis  v.  Munson,  108  N.  Y.,  453.)  The 
term  in  the  agreement  is  stated  to  be  ‘as  long  as  the  second 
party  or  any  of  their  family  own  or  occupy  said  lands.’  An 
interest  for  such  term  is  not  an  absolute  fee,  because  it  is  pos- 
sible that  it  may  at  some  time  be  terminated.  It  is  a base  or 
qualified  fee  or  freehold  estate.  (Gerhard  Titles,  4th  Ed., 
115.) 

“The  agreement  not  having  been  executed  and  delivered 
before  at  least  one  witness,  and  not  having  been  acknowledged, 
does  not  take  effect  as  against  a subsequent  piirchaser  or  in- 
cumbrancer of  the  grantor.’^ 

Clark  V.  Strong,  105  N.  Y.  App.  Div.,  179. 

So  a grant  of  the  right  to  “flow  and  overflow”  lands  and  au- 
thorizing the  grantee  to  build  a dam  maintaining  the  waters  of  a 
pond  at  a certain  height,  implies  the  right  to  have  the  land  left  as 
part  of  the  reservoir  so  to  be  formed  and  filled  with  water,  and  as 
such  precludes  any  use  by  the  grantor  inconsistent  with  the  grant. 
The  owner  could  not  fill  up  the  land  so  as  to  exclude  the  water. 

Phillips  V.  Watuppa  Reservoir  Company,  184  Mass.,  404; 

68  N.  E.,  848. 

A grant  to  a power  company  and  “its  successors  and  assigns 
forever”  of  the  right  to  go  on  land  on  the  bank  of  a river  and 
construct  an  abutment  for  a dam  and  to  keep  the  same  in  repair  is 
a grant  of  an  easement  in  fee. 

Siveetland  v.  Grants  Pass  Poiver  Co.,  46  Ore.,  85;  79  Pac. 

Rep.,  337  (Oregon,  1905.) 

“An  easement  in  gross  where  the  grant  is  to  the  grantee, 
his  successors  and  assigns,  is  capable  of  assignment,  and  is 
therefore  in  perpetuity,  though  not  technically  in  fee.  10  A.  & 
E.  Ency.  L.,  2d  Ed.,  403;  Houston  v.  Zahen,  44  Ore.,  610  (76 
Pa.,  641) ; 65  L.  R.  A.,  799;  Pinkum  v.  City  of  Eau  Claire,  81 
Wis,  308;  (51  N.  W.,  550.)  The  difference  is  said  to  be  purely 


u; 


te(‘.lini(*al  and  does  not  alTeet  any  substantial  right  in  the  prem- 
ises.” 

H)i(L 

These  decasions  conclusively  settle  the  law  that  a validly  created 
perpetual  right  of  flowage  is  not  a license  but  a perpetual  interest 
in  the  land — and  a contract  which  purports  to  confer  such  right 
without  limit  of  time,  purports  to  confer  a perpetual  interest,  and 
when  made  for  a money  consideration  purports  to  make  a sale 
thereof. 

By  the  Canal  Acts  the  Commissioners  were  empowered  to  make 
three  kinds  of  contracts  concerning  canal  lands: 

1 . Sale  at  public  auction. 

'1.  Water-power  leases  of  power  and  lots  and  lands  at  i)ublic 
auction  for  twenty  years. 

d.  Land  leases  for  twenty  years. 

The  contract  of  perpetual  flowage  is  not  No.  3.  It  is  not  a lease 
for  twenty  yec.rs.  It  is  not  No.  3,  a water-power  lease  for  twenty 
years.  It  is  a sale  of  an  interest,  but  not  at  public  auction.  It  vio- 
lates the  statute  and  is  void. 

When  the  order  of  these  events  is  considered,  it  is  seen  that  they 
comprise  an  original  intention  by  the  Commissioners  to  sell  and 
by  Munroe  to  buy  and  an  advertisement  of  the  riparian  tract  for 
sale,  then  a postponement  of  that  sale,  then  the  making  of  the 
flowage  contract  without  advertisement,  which  amounted  to  a sale. 
The  flowage  contract  left  to  the  Canal  Commissioners  only  the 
naked  title  to  the  riparian  tract  and  to  the  ninety-foot  strip 
throughout  these  six  sections  and  more — and  they  merit  the  in- 
quiry of  this  Court  in  Woodward  v.  Seeley,  11  111.,  165,  viz.: 

‘‘Of  what  avail  is  it  to  a man  to  have  the  naked  title  to  a 

. piece  of  land  which  he  cannot  use,  but  which,  in  spite  of  him. 
another  has  the  right  to  keep  forever  covered  with  ivaterf^’ 


17 


T. 

THE  FT.OWACiE  CONTRACT  (JRANTINO  THE  RIGHT  TO  Fl.OW  THE  90-FOOT 
STRIP,  THE  TOW-PATH  BANK,  AND  THE  RIPARIAN  TRACT  IN  PERPET- 
UITY IS  A sale  of  real  estate. 

1.  As  such  sale  it  violates  the  statute  forbidding  a sale  of  canal 
real  estate,  except  upon  advertisement  and  to  the  highest  bidder, 

and  is  void.  (See  Act  of  1899,  Sec.  8,  Cl.  8,  cited  herein  at  p , 

supra.) 

2.  As  such  it  is  an  attempted  sale  of  the  90-foot  strip  and  vio- 
lates the  statute  reserving  the  90-foot  strip  from  sale. 

That  such  a contract  conferring  the  right  of  permanent  flowage 
of  land  is  a sale  and  grant  of  an  estate  in  land,  see  the  following 
authorities : 

(1849)  WoocUvard  v.  Seeley,  11  111.,  157. 

Wilmington  Water  Poicer  Co.  v.  Evans,  160  111.,  548. 

Deyo  V.  Ferris,  22  111.  App.,  154. 

Mumford  v.  Whitney,  15  Yvend.,  381,  393. 

Cook  V.  Stearns,  11  Mass.,  533,  536-8. 

Nellis  V.  Munson,  108  N.  Y.,  453. 

(1887)  Fitch  v.  Constantine  Hydraulic  Co.,  44  Mich.,  76; 

S.  C.,  6 N.  AV.  Eep.,  91. 


THE  FLOODED  AREA. 

The  area  to  be  flooded  in  pei'iietuity  thereunder  is : 

(a)  The  ninety-foot  strip  through  three  canal  sections  (25,  31 
and  29)  expressly  named. 

(b)  The  ninety-foot  striji  up  stream  so  far  as  it  bordered  the 
river. 

(c)  The  liiparian  Tract  in  Section  31  lietween  the  canal  and 
the  river. 

(d)  The  tow-iiath  liank. 

The  riparian  tract,  subject  of  the  flowage  contract,  lease  and 
deed,  is  frecjuently  referred  to  in  the  re('ord  as  the  “so-called 
17-acre  tract.’’ 

Counsel  for  defense  put  in  evidence  (p.  2697)  from  the  Canal 


IS 


lk(‘'j)()i-i  of  under  the  title  “Unsold  (hinal  I^ands  Xovemljer 

:>(),  1{)()0,”  the  following  item,  on  [)age  4-2: 


“l.ols.  Block  I Valuation 

KANKA  KUU. 


! docks  dO,  :n,  22,  :u,  27,  2S,  29,  40  and  42,  be- 
ing in  Se(*tion  21,  township  2)4,  liange  9 
Kast,  2rd  P.  M.,  containing  16  22-100  acres, 

at  $25  i)er  acre 

MORRIS.” 


$408.00 


Total 


$408.00 


This  is  listed  as  containing  16  22-100  acres,  and  on  page  2699 
counsel  for  defense  states  it  to  lie  “the  16-acre  tract  for  which  we 
gave  yon  $2,200.  ’ ’ 

This  listing  hy  the  Canal  Commissioners  is  the  source  of  a se- 
rious error  on  their  part.  Commissioner  Sackett  and  Superin- 
tendent McDonald  continually  refer  to  the  tract  as  the  so-called 
“17-acre  tract.” 

In  reality  the  tract  so  described  and  listed  is  so  much  of  this 
riparian  tract  as  lies  north  and  west  of  the  Kankakee  feeder  and 
less  than  one-third  of  the  tract. 

The  “Town  of  Kankakee,”  of  which  these  lots  were  so  listed  as 
])art,  is  not  the  present  City  of  Kankakee,  hut  the  old  town  of  Kan- 
kakee, located  at  the  confluence  of  the  two  rivers  of  which  the  State 
put  in  the  plat  (Transcript,  p.  4424).  This  is  apparent  from  the 
fact  that  the  lots  are  listed  in  Section  21,  Township  24  North,  Range 
9 East,  in  which  Johnny  Beard’s  Town  of  Kankakee  is  located, 
while  the  present  City  of  Kankakee  is  several  miles  wide. 

That  the  riparian  tract,  in  fact,  had  a much  larger  area  is  easily 
demons  tr  able. 

The  Court  judicially  knows  the  principle  of  mathematics  of  which 
the  rules  of  mensuration  are  a part.  By  the  rules  of  mensuration 
the  area  of  any  tract  of  land  whose  dimensions  are  known  can 
readily  be  ascertained. 

The  area  of  an  irregular  tract  of  land  is  ascertained  hy  dividing 
it  into  triangles  at  every  change  of  the  direction  of  the  ])oundary 
lines  and  by  adding  the  areas  of  the  triangles  together.  Applying 
this  method  to  the  tract  shown  upon  Hille])rand  Exhibit  2 as  the 


19 


tract  conveyed  by  tlie  deed  of  the  Coniinissioners,  its  ar(‘a  is  read- 
ily ascertained. 

The  irillebrand  Exliibit  3 is  proven  l)y  the  testimony  ot*  Mr.  Ifille- 
brand  to  be  a true  and  correct  plat  from  actual  survey  truly  drawn 
to  the  scale  of  100  feet  to  the  inch.  The  dimensions  of  the  tract 
are  therefore  given  and  its  area  is  ascertained  in  the  manner  above 
described. 

Applying  this  method,  the  area  is  ascertained: 

1.  Of  the  tract  {excluding  the  9t)-foot  strip  along  its 

northern  edge  and)  extending  on  the  south  edge  to 
the  meander  line  of  the  Eiver  Des  Plaines,  which 
is  shown  by  the  marginal  line  of  the  river, 
which  is 32.59  acres 

2.  Of  the  area  of  the  adjacent  north  half  of  the  river 

between  the  marginal  line  and  the  middle  thread 
of  the  Des  Plaines,  claimed  by  defendant,  which 
is 26.33  acres 

Total  area,  riparian  tract 58.92  acres 

The  area  of  the  feeder  right  of  way  240  feet  wide  lying  south  of 
the  center  thread  of  the  Des  Plaines  is  3.51  acres  additional — and 
of  the  90-foot  strip  in  this  section  (which,  though  formally  excluded 
from  the  deed,  was  to  be  flooded  in  perpetuity,  under  the  flowage 
contract)  was  in  all  17.71  acres. 


THE  FLOODED  AREA  OF  THE  NINETY-FOOT  STRIP. 

The  area  of  the  90-foot  strip  less  the  12  feet  at  the  top  of  the 
tow-path  is  6670x78. 

What  the  defendant  was  to  get  in  all  was  80.14  acres. 

The  Ilillebrand  Exhibit  being  drawn  to  a true  scale  and  sworn 
to  be  correct  from  direct  survey  of  the  field,  the  dimensions  of  the 
entire  tract  are  truly  shown  by  it. 

In  Scanlon  v.  San  Francisco  S S.  J.  V.  By  Co.  (Sup.  Ct.  of  Cal.), 
55th  Pac.  Rep.,  p.  694,  the  Court  applied  the  rule  which  we  invoke 
here.  They  held  from  an  inspection  of  plans  which  gave  measure- 
ments that  they  were  able  to  and  did  compute  the  area  and  con- 
tents of  the  railway  eml)ankment  and  affirmatively  held  the  testi- 


20 


inony  of  witnesses  to  a different  set  of  figures  to  be  wrong.  The 
Court  said: 

The  Court  takes  judicial  notice  of  the  laws  of  nature 
(Code  Civ.  Proc.,  Sec.  1875,  subd.  8),  among  which  are  the 
jjrinciples  of  mathematics.  The  science  of  mensuration,  which 
must  control  in  this  case,  is  a branch  of  pure  mathematics, 
with  which  the  Court  is  presumed  to  be  acquainted.  By  the 
rules  of  mensuration,  the  contents  of  an  irregular  prismoidal 
body,  such  as  a railway  embankment,  is  ascertained  by  divid- 
ing it  by  vertical  planes  at  every  change  of  contour  of  the  un- 
derlying ground  into  a series  of  prismoids,  and  computing  the 
contents  of  each  of  these  prismoids  by  adding  together  its  two 
end  areas  and  four  times  its  middle  area,  dividing  this  sum  by 
six,  and  multiplying  the  quotient  by  the  length  of  the  pris- 
moid.  The  product  will  be  the  actual  contents  of  the  pris- 
moid.  See  Enc.  Brit.  (9th  Ed.),  art.  ‘Mensuration.’  This 
method  was  not  employed  by  the  witness.  His  method  was  an 
approximation,  which  assumes  that  the  middle  area  of  a pris- 
moid  is  equal  to  half  the  sum  of  its  end  areas.  This  is  true 
only  in  the  case  of  a prism,  or  in  a prismoid  consisting  of  the 
frustrum  of  a regular  pyramid.  This  approximation,  it  is 
true,  will  give  results  correct  enough  for  practical  purposes 
in  very  uniform  embankments,  where  there  is  but  little  differ- 
ence in  height.  But  in  other  cases  its  results  are  always  too 
large,  and  it  would  be  easy  to  suppose  cases  in  which  the  ex- 
cess would  be  greater  than  the  difference  between  the  esti- 
mates of  the  respective  parties  in  this  case.” 

And  see  cases  cited  on  Judicial  notice  herein. 

That  the  Commissioners  should  carry  the  property  on  their  . 
books  in  one  description  and  then  should  contract  to  flood  it,  should 
lease  it  and  should  sell  it  by  another  description  covering  three 
and  a half  times  as  much  area,  is  one  of  those  gross  mistakes  which 
of  itself  justifies  the  vacation  of  the  contracts,  if  they  were  valid 
in  other  respects. 

The  Court  took  such  action  in  Macoupin  Co.  v.  People,  58  111., 
191,  and  in  Beall  v.  Dingman,  227  111.,  294,  and  as  applied  to  water 
areas  in  Fuller  v.  Shedd,  161  111.,  462,  at  481-2. 

And  when  the  value  of  the  water-power  rights  in  the  property 
claimed  by  the  defendant  as  included  in  the  transfer  is  considered, 
the  disparity  of  the  consideration  received  is  beyond  debate. 


21 


IT. 

THE  FLOWA(iE  CONTRACT  IS  BEYOND  THE  POWERS  OF  THE  CANAI.  COM- 
MISSIONERS, AND  IS  VOID. 

The  Canal  Commissioners  are  statutory  officers.  They  derive 
their  powers  from  the  statute.  They  have  only  enumerated  spe- 
cial powers.  These  are  set  forth  in  ‘‘An  Act  to  revise  the  law  in 
relation  to  the  Illinois  and  Michigan  Canal,  and  for  the  improve- 
ment of  the  Illinois  and  Little  Wabash  Rivers,’^  as  amended  by 
Act  of  April  21,  1899,  L.  1899,  p.  82,  4 Starr  & Curtis,  Ch.  19,  pp. 
89-91.  Power  to  make  this  contract  will  not  be  found  there. 

The  Commissioners  have  no  powers  by  implication. 

Statutes  delegating  powers  to  public  officers  are  strictly  con- 
strued, and  all  parties  interested  must  look  to  the  statute  for  the 
grant  of  the  power. 

Acts  of  the  Commissioners  not  within  the  terms  of  the  statutes 
are  void. 

(1837)  111.  & Mich.  Canal  v.  Calhoun,  1 Scam.,  521. 

(1907)  Diederich  v.  Bose,  228  111.,  610,  affirming  S.  C.  133, 
111.  App.,  384. 

State  of  Illinois  v.  Delafield,  8 Paige’s  Chy.,  528. 

In  these  cases,  contracts  by  the  Commissioners  which  were  ad- 
vantageous to  the  canal  property  were  defeated  because  they  were 
outside  the  xiowers  granted  by  the  Commisisoners. 

In  1 Scammon,  521,  the  Commissioners  in  selling  lands  in  1837 
auneNed  unauthorized  conditions  thus : 

“That  in  case  any  holder  shall  fail  to  comply  with  the  terms 
of  the  sale,  during  the  days  of  sale,  on  which  the  sale  of  the 
lot  is  made,  his  bid  will  be  forfeited  and  the  lot  resold,  the 
first  purchaser  being  held  accountable  to  the  Commissioners 
for  any  loss  that  may  accrue  trom  the  sale,  but  entitled  to  no 
profit  therefrom.” 

In  that  case  the  Commissioners  sold  lands  on  these  terms,  and 
the  Commisisoners  resold  the  lands  at  a lower  iirice  and  then 
brought  suit  against  the  bidder.  Judgment  on  demurrer  for  de- 
fendant was  affirmed.  The  Court  said  (pp.  522-3)  : 

“P>y  the  provisions  of  the  act  referred  to,  creating  the  Canal 


lioard,  it  will  })e  ()})vi()ii8  that  the  (k)iiiinissi()iiers  were  not  au- 
th()]-iz(Ml  to  annex  to  the  ('onditions  of  the  sale,  the  teians  ini- 
))osed  hy  the  notice  given.  The  second  section  of  tlie  Act  of 
(^)ngress,  having  heen  the  mode  adopted  by  the  .‘Uitli  section 
of  the  a(*t  (pioted,  for  the  government  of  the  sales,  tliey  were 
not  at  liberty  to  im))ose  otliers,  or  substitute  tliose  that  would 
jm])ose  conditions  of  tlie  cliaracter  descril)ed.  The  refusal  by 
the  i)urcliaser  to  pay  for  tlie  lot  in  the  manner  provided  by 
law,  on  the  day  of  sale,  reipiired  them  to  ])ut  uj)  the  lot  again 
for  a re-sale,  and  to  prohibit  such  purchaser  refusing  to  pay 
for  the  lot  jireviously  purchased  from  being  a bidder  for  any 

other  lot  on  the  day  of  sale. 

# * * * # # * # * * * 

‘^If  this  reasoning  be  correct,  it  followvs  as  a consequence, 
that  by  the  adoption  of  the  penalty  of  forfeiture  of  the  bid  of 
tlie  delinquent  purchaser,  and  the  prohibition  to  become  a pur- 
chaser of  any  other  lot  at  the  sales,  are  the  only  terms  which 
the  Commissioners  could  legally  impose  and  enforce.  They 
had  no  discretion  to  exercise  any  other  powers  than  such  as 
are  conferred  by  the  act ; and  those  adopted  are  not  among 
those  granted.” 

In  Diederich  v.  Bose,  228  111.,  610  (affirming  133  111.  App.,  384- 
391)  the  Commissioners  having  power  as  to  canal  lots  and  lands 
in  Chicago  to  lease  for  20  years  and  no  power  to  sell  same,  made  a 
lease  containing  the  following  provision: 

‘At  is  expressly  understood  and  agreed  that  at  the  expira- 
tion of  this  lease,  if  the  party  of  the  second  part  should  be  un- 
successful in  obtaining  a renewml  of  the  same,  that  the  party 
or  parties  to  whom  the  canal  commissioners  may  lease  said 
premises  shall  be  required  to  purchase  and  pay  for  the  build- 
ings or  structures  owned  by  said  party  and  situate  on  said  lot 
at  an  appraisal  to  be  made  by  three  judicious,  disinterested 
freeholders— one  to  be  chosen  by  the  Canal  Commissioners  or 
authorized  agent,  one  by  said  party  of  the  second  part,  and 
the  third  appraiser  to  be  selected  by  the  two  thus  chosen.” 

The  lessee  (appellant)  made  such  improvements.  Pending  the 
lease  the  statute  was  changed  so  as  to  authorize  the  Commission- 
ers to  sell  the  land,  and  they  sold  it  to  one  Harmeyer  subject  to 
the  lease;  Harmeyer  sold  to  Eose  (appellee),  who  asserted  title  to 
the  improvements  and  denied  the  right  of  appellant.  Whereujmn 
appellant  tiled  his  bill  to  establish  his  lien  under  the  clause  above 
quoted. 

This  Court  said : 

‘^Statutes  delegating  powers  to  public  officers  must  be 


strictly  (‘onstrucd,  and  all  parlies  itdxn-(‘st(Ml  must  look  to  tin; 
statute  for  the  i»i‘aut  of  power.  (2  lj(*wis’  Sutli(*rlarid  ou  Stat- 
utoi*y  (\)ustructiou,  2d  ed.,  Se(*.  51)2;  Illinois  (iftd  Michif/an 
Canal  v.  Calhoun,  1 Scam.,  521  ; Hfale  of  Illinois  v.  Delafialrl, 
cS  Paige’s  Oh.,  528;  2()  iVm.  (fc  Kug.  hhi(*.y.  of  Law,  2d  (;d.,  p.  1)55, 
and  autliorities  there  (hted.)  Under  the  A(‘t  ot  1851)  this  Oourt 
held  that  the  Canal  Conmiissioners  liad  no  authority  to  annex 
other  conditions  or  terms  than  those  provided  in  the  act. 
When  the  language  is  clear  and  admits  of  hut  one  meaning 
there  is  no  room  for  construction.  Courts  cannot  change  tlie 
clear  meaning  of  words  used,  even  though  the  conserpiences  ap- 
])ear  not  to  be  such  as  were  contemplated.  {St.  Louis  S Cairo 
Railroad  Co.  v.  Postal  Telegraph  Co.,  173  111.,  508;  26  Am.  & 
Eng.  Ency.  of  Law,  2d  ed.,  p.  598,  and  cases  there  cited.)  We 
are  of  the  opinion  that  the  Canal  Commissioners  had  no  i)ower 
to  provide,  as  they  did  in  tliis  lease,  that  if  the  premises 
should  not  be  re-let  to  appellant  then  the  new  tenant  should  he 
required  to  take  the  improvements  at  an  appraised  value.” 

This  being  the  law,  what  then  were  the  powers  of  the  Canal  Com- 
missioners on  September  2,  1904,  in  respect  to  the  matters  here 
contracted  about? 

These  ])owers  are  defined  hy  the  act  of  A])ril  21,  1899,  amend- 
ing the  ‘LVet  (of  1874)  to  revise  the  law  in  relation  to  the  Illinois 
and  Michigan  Canal  and  for  the  im'i)rovement  of  the  Illinois  and 
Little  lUabash  Livers”  (L.  1899,  p.  82;  4 Starr  & Curtis  Supple- 
ment by  Jones  & Addington,  Ch.  19,  p]).  89-91),  as  follows: 

^^Par.  2.  Powers  of  Commissioners. — -Se(‘.  8.  Said  Com- 
missioners shall  have  control  and  management  of  the  Illinois 
and  Michigan  Canal,  including  its  feeders,  basins  and  appui*- 
tenances,  and  the  pro})erty  thereto  belonging,  and  all  locks  and 
dams  and  other  improvements  of  the  navigation  of  the  Illinois 

and  Little  AVahash  Rivers,  and  shall  have  authority  : 

*********** 

Second — ^To  prescribe  reasonal)le  rules  and  I'egulations  in 
res])ect  to  all  matters  connected  with  the  navigation  and  use 
of  the  said  canal,  locks  and  dams  and  transportation  on  or 
through  the  same.  * * * power  granted  in  this  arti- 

cle shall  apply  as  well  to  that  part  of  the  south  branch  of  the 
(4iicago  River  within  one  thousand  feet  of  the  lock  at  Bridge- 
port, and  to  the  canal  basin  at  or  near  the  termination  of  the 
(‘anal  on  the  Illinois  River,  and  to  that  part  of  the  Illinois  and 
Little  M^al)ash  Rivers  above  and  below  the  several  locks  and 
(lams  within  one  tliousand  feet  thereof,  and  to  all  feeders,  l)a- 

sins  and  latei-als  as  to  the  canal,  locks  and  dams. 

*********** 


‘VKiftli — To  leas(i  fi*oin  time  to  time  any  of  tlie  canal  lands 
or  Jots  owned  by  the  State:  Provided,  no  lease  shall  be  for  a 
period  exceeding  twenty  years. 

Sixth — To  lease  from  time  to  time,  to  the  highest  bidder 
therefor,  any  water  power  and  lands  or  lots  connected  there- 
with. Before  any  such  lease  shall  he  made,  at  least  thirty 
days’  public  notice  of  the  intended  letting  shall  be  given  by 
pul)lication  in  some  newspaper  published  in  the  neighborhood, 
and  such  other  notice  as  the  Commissioners  shall  deem  best. 
The  Commissioners  shall  have  power  to  require  that  bids  be 
accompanied  by  security,  and  may  reject  all  bids  not  satis- 
factory to  them,  and  readvertise  until  they  shall  receive  sat- 
isfactory bids.  No  lease  shall  be  for  a period  exceeding  twen- 
ty years,  but  the  Conunissioners  may  provide  for  the  exten- 
sion of  any  lease  from  time  to  time,  not  exceeding  twenty 
years  at  any  one  time,  at  a rent  to  be  fixed  by  an  appraisal,  to 
be  made  by  three  disinterested  appraisers,  to  be  appointed  by 
the  Governor,  and  such  appraisal  shall  be  subject  to  the  ap- 
proval of  the  Commissioners.  All  leases  of  water  power  and 
extensions  thereof  shall  be  subject  to  the  right  of  the  Commis- 
sioners to  resume,  without  compensation  to  the  lessee,  the  use 
of  any  such  water  power  for  the  purpose  of  the  canal,  and  also 
wholly  to  abandon  or  destroy  the  work  by  the  construction  of 
which  the  water  privilege  shall  have  been  created,  whenever, 
in  the  opinion  of  the  Legislature,  such  work  shall  cease  to  be 
advantageous  to  the  State. 

Seventh — To  lease  from  time  to  time  to  the  highest  and 
best  bidder  (after  publishing  notice  in  some  newspaper  in  the 
County  where  the  ice  privilege  to  be  leased  may  be),  in  sec- 
tions not  exceeding  one  thousand  feet,  lineal  measure,  upon 
such  terms  as  not  to  interfere  with  the  proper  use  and  man- 
agement of  the  canal,  the  right  to  take  and  harvest  ice  there- 
from, or  from  any  of  its  feeders,  basins  and  appurtenances, 
and  to  prohibit  all  persons  from  taking  and  harvesting  ice 
therefrom  without  such  lease:  Provided,  no  such  lease  shall 
be  for  a longer  time  than,  twenty  years. 

‘^Eighth — To  sell  and  convey,  whenever  in  their  judgment 
the  interest  of  the  State  will  be  promoted  thereby,  any  canal 
lands  or  lots  now  owned  by  the  State  other  than  those  con- 
nected with  water  power  upon  the  said  canal  and  the  ninety- 
foot  strip  along  the  canal.  But  before  making  any  such  sale 
they  shall  obtain  the  approval  of  the  Governor  thereto,  and  to 
the  time,  place  and  manner  of  making  the  same:  Provided, 
that  before  any  such  sale  shall  be  made,  thirty  days  ’ previous 
notice  thereof  shall  be  given  in  some  newspaper  published  in 
the  County  where  such  land  is  situated.  And  said  land  shall 
be  sold  at  public  auction  to  the  highest  and  best  bidder.” 

Nothing  can  be  found  in  this  statute  or  any  other  giving  the 


(\>ininissi()nors  power  to  nioke  a (*()ntra(‘t  autliorizino- an  individual 
tor  his  private  gain. 

(I)  To  build  a water-power  daiii  a('ross  the  Des  Plaines,  d(ief)en 
the  Illinois  and  maintain  these  works  in  perpetuity. 

(1^)  To  attach  (ajid  maintain  in  perpetuity)  the  water-power 
dam  to  the  tow-path  and  canal  embankment  which  was  l)uilt  by  tlie 
Canal  Anthorities  and  is  needed  to  retain  the  canal  waters  in  place. 

(3)  To  flood  in  perpetuity  this  canal  embankment  and  use  it  as 
a retaining  wall  for  the  water-power  pool. 

(4)  To  flood  in  perpetuity  the  reserved  90-foot  strip  of  land 
bordering  the  canal. 

(5)  To  raise  the  tow-path,  attach  and  enclose  a levee  thereto, 
use  the  gravel  and  other  material  (building  stone,  piers,  etc.)  of  the 
canal  in  constructing  such  works  and  perpetually  maintaining  the 
same. 

(6)  To  enter  upon  or  fill  in  portions  of  the  canal  in  perpetuity 
for  the  purpose  of  maintaining  such  works. 

(7)  To  maintain  a line  of  power  poles  and  wires,  25  miles  long, 
upon  the  tow-path  of  the  canal.  (Ex.  K,  Abst.,  p.  77.) 

f 

(8)  To  flood  in  perpetuity  the  canal  riparian  lands  between  the 
Des  Plaines  River  and  the  canal. 

(9)  To  excavate  and  remove  (i.  e.,  destroy)  so  much  of  the 
canal  feeder  acquired  and  constructed  by  the  State  at  great  ex- 
pense as  part  of  the  canal  (and  which  formerly  fed  the  waters  of 
the  Kankakee  River  into  the  canal)  as  extends  into  and  north- 
wardly beyond  the  Des  Plaines  River  (Ex.  A,  Clause  8;  Abst.,  p. 
30)  and  to  use  the  remainder  of  the  Kankakee  Eeeder  as  a tribu- 
tary of  the  defendant’s  proposed  water-power  plant.  (By  lease. 
Ex.  C,  Abst.,  p.  30,  for  20  years,  with  jjrovision  for  renewal  sub- 
ject to  right  of  cancellation.)  (See,  also.  Ex.  A,  Clause  5.) 

(10)  To  appropriate  the  waters  of  the  Kankakee  River  and 
empty  them  thereby  into  defendant’s  water-power  ])ool  above  the 
dam  instead  of  letting  them  flow  naturally  into  the  Illinois  below. 

(II)  To  divert  and  turn  back  from  the  Des  Plaines  River  the 
tributary  stream  known  as  the  Kankakee  Cut-otf  and  make  it  run 


liarkward  and  into  tlio  Kankakee  Kiver  as  an  outlet  or  spillway  for 
liigli  wat(M*s  fi'oni  the  water-power  pool — 

oi*  to  do  any  other  of  the  tilings  aiitliorized  l)y  the  flowa^e  ('on- 
tract. 

The  ])rovision  about  ‘‘perpetually”  is  in  a peculiar  form — tliaT 
the  grantee  sliall  “ ])erpetually  tliereaftei*  maintain  tlie  same  in 
good  condition.” 

The  grantee  could  not  perpetually  maintain  it  in  good  condition 
without  perpetually  ])eing  in  possession  of  it.  Tn  other  words,  the 
contract  was  a contract  in  perpetuity,  and  therefore  not  valid. 
The  Canal  ( ■ommissioners  had  no  authority  to  grant  any  such  con- 
sent. 

The  Ckinaf  Commissioners  had  no  power  to  authorize  them  to 
entei*  upon  and  in  the  canal  and  put  structures  in  the  canal  as  they 
have  done.  Tliey  had  no  right  to  give  away  the  feeder,  nor  to 
authorize  them  to  overflow'  this  land  in  perpetuity.  The  contract 
to  oveniow  that  land  in  perpetuity  was  itself  equivalent  to  a sale 
of  the  land;  and  when  the  public  sale  was  postponed  it  afterwards 
was  privately  consummated  in  effect  by  means  of  this  contract  of 
dowage. 


III. 

THE  CANAL  LEASES  AKE  ILLEGAL  AND  VOID. 

Having  made  the  sale  of  the  easement  in  reality  at  a private  sale 
to  Munroe  by  means  of  this  flowage  contract,  the  Commissioners 
then  leased  the  naked  legal  title  of  the  riparian  tract  to  him  for 
twenty  years  with  pirovision  for  renewal.  On  the  same  day  they 
gave  him,  his  successors  and  assigns,  the  lease  K — being  a twenty 
year  lease  of  the  tow-path  itself  for  !25  miles,  for  the  ])urpose  of 
maintaining  a line  of  trolley  jioles  thereon — eleven  months  later, 
August  8,  1905,  they  gave  him  (Exhibit  of  Information)  a lease 
for  twenty  years  of  the  Kankakee  Feeder,  with  a t)rovision  for 
renewal  for  twenty  years  more  at  rent  to  be  fixed  by  a])praisal. 

The  statute  will  be  searched  in  vain  for  any  authority  to  give 
such  renewable  lease  as  Exhiliit  B (Abst.,  p.  34),  or  for  any  au- 
thority to  make  the  Kankakee  Feeder  lease  Exhibit  C,  or  for  any 


'll 


auiliorily  to  i>i\“mt  tli(‘  ri^lit  to  maintain  a ‘Jo-inilc*  troll(;y  [;oI(;  lira? 
on  tile  tow-|)atli. 

In  the  land  lease  !>,  the  lessee  (‘ovenanted  on  his  pari: 

(1)  i\)  i)ay  the  rent  (and  paid  it)  and 

(2)  idiat  he  was  eharged  with  knowledge  of  the  flowage  con- 
tra et,  and 

(0)  To  pay  $500  more  for  a second  twenty  years,  and 

(4)  To  notify  the  Commissioners  of  his  election  to  take  a sec- 
ond twent}^  years,  one  year  before  the  expiration  of  the  first  twen- 
ty years. 

In  return  the  Canal  Commissioners — 

(1)  Leased  to  him  and  his  assigns  the  following  premises : 

(a)  The  riparian  tract,  and 

(h)  The  90-foot  strip  throngh  six  sections  of  land,  and 

(c)  That  part  of  the  Kankakee  Keeder  and  the  90-foot  strip 
on  each  side  of  it  throngh  two  sections  of  land  (Sections  31 
and  5)  for  twenty  years,  snliject  to  the  flowage  contract; 

(2)  Covenanted  that  in  case  the  Commissioners  shonld  deter- 
mine to  re-let  the  property,  then  '‘the  said  pcnii)  of  the  second  part 
shall  have  the  first  right  to  release  the  same/’ 

(d)  For*  as  ninch  as  shall  he  offered  hy  anyone  else; 

(e)  Or  an  a])praised  rental  fixed  hy  three  ap|)raisers,  hnt 
not  less  than  $500; 

(f)  Took  an  absolute  covenant  from  him  to  ])ay  $500  for 
the  second  20  years. 

1.  The  lease,  exhibit  b (September  2,  1904),  by  its  renewal 

CLAUSE  VTOl.ATES  THE  STATUTE. 

The  renewal  (hanse  is  set  forth  at  Abst.,  ]).  35,  and  is  plainly 
part  and  parcel  of  the  contract  of  lease  and  not  a separate  con- 
tract. It  provides : 

' 'It  18  furtJter  understood  and  agreed  * * * that  in  case 

said  ])arty  of  the  first  part  shall  determine  to  re-lease  the  land 
herel)y  demised  at  the  expiration  of  this  lease,  that  then  and 
in  snch  event,  the  said  party  of  the  first  part,  shall  have  the 
first  right  to  re-lease  the  same  hy  paying  therefor  as  mnch  as 
shall  he  offered  l)y  any  other  '])erson  or  party  therefor;  Pro- 
vided, however,  that  snch  rental  may  at  the  o|)tion  of  said 
])arty  of  the  first  part  he  ascertained,  determined  and  fixed  by 
three  a])praisers,  one  to  he  chosen  by  each  of  the  ])arties  here- 
to and  the  third  ])y  the  two  thus  chosen,  Imt  in  no  event  shall 


tlie  rent  l)e  less  tlian  the  amount  fixed  in  this  lease;  the  said 
party  of  the  second  part  hereby  covenants  and  agrees  that  he 
tuill  and  he  hereby  offers  to  pay  the  same  rental  as  herein 
agreed  to  be  paid  for  another  term  of  twenty  years,  to  begin 
at  the  expiration  of  the  term  hereby  granted/^ 

The  instrninent  has  many  seeming  inconsistencies,  ])ut  here  is  an 
absolute  covenant  to  pay  for  tlie  second  term  the  same  rental  as  is 
paid  for  the  first  term. 

Not  only  there  is  no  authority  granted  the  Commissioners  to 
make  such  a 40-year  contract,  but  the  statute  expressly  forbids  the 
making  of  such  a contract.  This  was  a power  which  ^‘tlie  Legis- 
lature had  not  only  negatively  denied  them,  but  had  affirmatively, 
so  to  say,  taken  away  from  them.”  (Diederich  v.  Rose,  133  111, 
App.,  391.) 

The  statutory  grant  of  power  to  the  Commissioners  to  lease  is 
as  follows : 

‘‘Fifth — To  lease  from  time  to  time  any  of  the  canal  lands 
or  lofs  owned  by  the  State ; Provided,  no  lease  shall  be  for  a 
period  exceeding  twenty  years^ 

The  attempted  grant  of  this  right  of  renewal  is  in  violation  of 
this  statute,  illegal  and  void. 

Illinois  and  Michigan  Canal  v.  Calhoun,  1 Scam.,  521. 
Diederich  v.  Rose,  228  Ilk,  610;  affirming  Id.,  133  111.  App., 
391. 

State  of  Illinois  v.  Delafield,  8 Paige’s  Chy.,  528. 

This  renewal  clause  amounts  in  itself  to  a lease  for  the  extended 
term  (so  held  in  case  of  a water-power  lease)  (Per  Dixon,  C.  J.) 
Noonan  v.  Orton,  27  Wis.,  300;  S.  C.,  31  Wis.,  265. 

2.  THE  LEASE  FOR  PURPOSES  OF  FLOODING  THE  90-FOOT  STRIP  AND  THE 
TOW-PATH  BANK  ENDANGERS  THE  CANAL  AND  IS  AN  INVASION  OF 
THE  CANAL. 

The  90-foot  strip,  the  tow-path  (nut  the  herm  haul;  are  integral 
parts  of  the  canal. 

Such  leasing  of  several  miles  of  the  90-foof  strip  and  toiv-path 
bank  for  private  purposes  which  are  inherently  dangerous  to  the 
canal  is  beyond  the  power  of  the  Canal  Commissioners. 

The  contracts  authorize  the  flooding  of  the  90-foot  strip  along 


29 


the  line  of  tlie  eanul  tlironj>li  six  seetions  of  hind.  For  a ij^ri^at 
l)art  of  this  distance  tlie  canal  is  so  located  that  less  than  90  feet 
of  earth  intervene  between  water’s  edge  and  water’s  edge  at  the 
low  water  stage  of  the  river  in  its  ])resent  condition,  ''riiis  sti-ip, 
less  than  90  feet  wide,  is  occupied  by  an  artificial  embankment,  on 
the  top  of  which  is  the  tow-path. 

The  level  of  file  water  at  the  bottom  of  the  canal  is  about  18  feet 
above  the  level  of  the  river;  and  defendant  purposes  to  submerge 
this  bank  to  a depth  which  will  bring  the  water  in  the  river  up  to 
the  level  with  this  water  in  the  bottom  of  the  canal,  the  two  bodies 
of  water  being  separated  only  by  the  artificial  bank. 

Defendant  further  proposes  to  raise  the  tow-path  two  feet  higher 
and  broaden  the  bank  by  filling  in  on  top  without  increasing  its 
breadth  on  the  river  side,  but  filling  on  the  canal  side  for  about  5 
feet.  A slight  berm  had  been  formed  on  the  canal  side  of  the  bank 
near  the  surface  of  the  canal  water;  and  defendant’s  filling  on  the 
canal  side  covered  this  berm. 

^‘BERM  (also  written  berme)  * * * 

1.  A narrow  ledge;  specifically,  in  fortification,  a space  of 

ground  or  a terrace  from  3 to  5 feet  in  width,  left  between  the 
rampart  and  the  moat  or  foss,  designed  to  receive  the  ruins  of 
the  rampart  in  the  event  of  a bombardment,  and  to  prevent 
the  earth  from  filling  the  foss.  * * * 

2.  The  bank  or  side  of  a canal  which  is  opposite  to  the  tow- 
ing path.  Also  called  berm-bank.” 

(Century  Dictionary  Definition,  Vol.  1,  p.  529. 

The  same  discrimination  against  the  State  appears  throughout. 

The  defendant  may  select  its  assignee  of  the  contract  and  respon- 
sibility. The  State  can  not  object.  The  defendant’s  bank  is  made 
113  feet  wide,  slopes  varying  from  two  and  one-half  to  four  to  one, 
paved  with  hand-placed  and  tamped  stone.  The  canal  bank  is  left 
68  feet  wide,  except  for  five  feet  filling  on  the  canal  side  invading 
the  canal,  and  leaving  the  defendant’s  pool  undiminished  by  filling. 
The  filling  was  only  the  dump  of  a general  spoil-bank.  (Testi- 
mony of  Rudolph,  Trans.,  p.  2250;  Abst.,  pp.  772-773;  testimony 
of  Kramer,  Trans.,  p.  355;  Abst.,  [>.  355;  testimony  of  Bremer, 
Trans.,  p.  2281;  Abst.,  ]).  780;  testimony  of  Benezette  Williams, 
Trans., }).  638;  Abst.,  ]).  337 ; testimony  of  Cooley,  Trans.,  pp.  2520- 


;]() 

2.)o();  Al)s1.,  ])j).  S4()-84S.)  No  ))laTis  were  made  for  any  further 
treatment.  And  tlie  witness  Ileywortli  testified  that  the  work  on 
the  hank  was  (‘omphded.  (Trans.,  ]).  7()9;  Ahst.,  p.  d78.) 

Defendant’s  witnesses  afterwards  modified  this,  but  tlie  admis- 
sion against  interest  should  be  taken  most  strongly  against  the  de- 
fendant. 

This  slender  bank  (about  32  feet  thick  at  the  bottom  of  the  canal 
and  top  of  the  water-power  ])ool),  between  these  two  bodies  of 
water,  is  an  inade(piate  ])rotection  of  the  canal,  if  the  additional 
))urden  is  to  l)e  brought  against  it.  The  canal  is  seriously  im- 
periled by  the  construction  of  this  work. 

When  the  Drainage  Channel  was  laid  out  alongside  the  river, 
the  Drainage  Commissioners  diverted  the  river  and  pushed  it  over 
into  a new  bed  from  600  feet  to  half  a mile  away  from  the  Drain- 
age Channel  and  built  high  retaining  walls  for  the  Drainage  Chan-, 
nel  and  levees  for  the  river.  Such  a course  is  impracticable  here. 
The  land  rises  from  the  canal  in  a steep  bluff  (^^ Dresden  Heights”) 
so  that  it  would  be  impracticable  to  move  the  canal  more  than  10 
feet  away  from  the  river,  and  then  only  at  a great  cost,  involving 
the  building  of  substantially  a new  canal  at  this  point. 

It  is  obvious  that  a bank,  at  least  as  strong,  would  be  needed  for 
the  side  of  the  pool  at  its  foot  as  for  its  adjoining  end. 

The  plans  of  the  defendant  gave  its  own  works  a bank  substan- 
tially double  the  thickness  and  strength  that  they  gave  the  canal. 
This  condemns  the  scheme  at  the  outset  as  inherently  dangerous, 
and  the  testimony  of  the  witnesses  for  the  State  left  no  doubt  on 
this  point. 

THE  NINETY-FOOT  STRIP. 

In  the  construction  of  the  Illinois  and  Michigan  Canal  there  was 
set  apart  and  properly  dedicated,  a strip  of  land  ninety  feet  in 
width  on  each  side  of  the  basin  of  the  canal,  to  lie  used  in  connec- 
tion with  the  canal  and  as  a part  and  appurtenant  therto.  This 
applies  to  the  sections  of  land  owned  by  the  State  of  Illinois,  to  wit, 
the  odd  numbered  sections  of  land.  In  the  even  numbered  sections 
of  land  that  were  retained  by  the  United  States  Government  the 
Supreme  Court  of  the  United  States,  in  Woerlmp  v.  IngersoU,  181 


•) 
• > 


V.  S.,  1»)1,  lield  itliat  there  was  ^iveii  })y  the  lIiiitcMl  Stat(is  a suf- 
heieiit  aiiioiiiit  ot  land  on  each  side  ot  the  basin  of  tlie  e.arial  to 
pro})erly  support  it  and  For  ne(*essary  use  in  eonneetion  tht;rewitli, 
witliont  referenee  to  whether  the  same  was  1)0  feet  wide  or  more, 
or  less. 

We  contend  that  this  strip  of  land  (90  feet  in  widtli  on  eacli  side 
of  the  basin  of  the  canal  in  the  odd  numbered  sections,  and  whatso- 
ever width  it  may  be  in  the  even  nnmbered  sections),  constitute 
a part  and  parcel,  and  a necessary  part  and  parcel,  of  the  canal 
itself;  that  the  Canal  Commissioners  have  no  rigid,  power  or  au- 
thority to  alienate  that  90-foot  strip,  or  any  part  of  it;  that  they 
conld  make  no  contract  that  would  subject  that  90-foot  strip  to  any 
use  other  than  for  the  direct  use  of  the  canal  itself,  and  that  conse- 
(piently  the  tlowage  contract,  and  the  lease  under  which  the  de- 
fendant claims,  are  absolutely  void. 

In  Alexander  v.  Tolleston  Club,  110  111.,  65,  this  Court,  speaking 
through  Chief  Justice  Sheldon,  says : The  case  in  its  general  out- 
line as  made  by  the  proofs,  is,  that  during  the  spring  of  1871  cer- 
tain gentlemen  of  Chicago  formed  an  association  called  the  “Tol- 
leston Club,”  the  object  of  which  was  shooting  and  fishing  in  the 
Tolleston  marshes.  They  purchased  a tract  of  sixty  acres  of  land 
in  Lake  County,  in  the  State  of  Indiana,  situate  about  one-half  mile 
from  the  Little  Calumet  River,  in  said  County,  upon  which  were 
erected  a clu])-house,  and  ])arn,  outbuildings,  and  large  boat-house, 
the  buildings  being  of  the  value  of  some  $10,000.  The  fishing  and 
hunting  of  the  members  of  the  club  could  only  be  prosecuted  in  the 
Little  Ckdumet  River  and  the  marshes  adjacent  to  the  banks  there- 
of, in  front  of  the  club  house.  About  that  time  Alexander,  with 
S.  11.  Turrill  and  dames  11.  Foster,  all  being  members  of  the  club, 
purchased  certain  lands  between  the  land  of  the  club  and  the  river 
and  the  marsh.  In  the  fall  of  1871  the  club  excavated  a canal 
across  the  land  of  Alexander,  Turrill  and  Foster,  with  their  full 
knowledge  and  consent,  at  a cost  of  $2,500,  it  being  for  the  purpose 
of  })assing  boats  from  the  river  to  the  boat-house,  the  latter  being 
at  the  upper  end  of  the  canal,  about  one  hundred  yards  from  the 
club-house.  The  water  being  seldom  of  sufficient  depth  for  the 
passage  of  boats,  the  members  of  the  club  were  accustomed  to  tow 
or  pole  their  boats  from  the  marsh  as  far  as  the  depth  of  the  water 


32 


would  allow,  and  walk  the  rest  of  the  distance,  following  a uni- 
form path  along  the  canal.  The  path  was  used  only  for  foot 
travel.  There  was  a plank  walk,  composed  of  two  planks,  and 
being  about  three  feet  wide,  put  down  along  this  path,  from  the 
(‘lub-honse  to  the  marsh,  in  3875.  * * * 

This  Court  said : 

‘‘It  is  contended  the  lease  gives  no  right  to  use  the  plank 
walk  laid  along  the  bank  of  the  canal.  The  foot-path  was  ever 
in  constant  use  by  the  members  of  the  club,  in  connection  with 
the  use  of  the  canal,  from  the  time  the  canal  was  dug.  The 
mode  appears  to  have  been  for  the  hunter  to  have  someone 
to  paddle  or  push  the  boat,  with  its  accoutrements  in  it,  up  and 
down  the  canal,  and  he  would  walk  along  the  bank.  A year  or 
two  after  the  canal  was  dug,  from  the  taking  away  of  a dam 
upon  the  river,  the  water  in  the  canal  became  lowered,  and  to 
such  an  extent  as  to  cause  a disuse  of  the  canal,  in  a great 
measure,  but  it  cannot  be  said  to  have  been  abandoned.  It 
rarely  was  used  through  its  entire  length  or  greater  part  but 
a portion  of  it  next  the  river  could  always  be  and  was  used 
for  the  boats.  This  disuse  of  the  canal  increased  more  and 
more  the  use  of  the  foot-path.  Boats  would  land  at  various 
points  along  the  bank,  according  as  the  depth  of  water  admit- 
ted of  the  passage  of  boats,  and  the  members  of  the  club  would 
walk  the  rest  of  the  distance  along  the  bank.  The  canal  and 
this  foot-path  were  the  only  practicable  means  of  access  from 
the  river  and  marsh  to  the  club-house  back  of  them.  When- 
ever there  is  the  right  of  navigaMon  there  is  the  incidental  right 
to  use  the  hanks  of  the  stream,  to  a greater  or  less  extent  as  the 
purposes  of  navigation  may  require.  The  lease  is,  in 
terms,  ‘all  the  ground  in  section  18  now  used  for 
said  canal.’  We  think  this  may  not  unreasonably  be  held  as 
including  all  the  ground  then  used,  together  with  the  canal,  or 
in  connection  with  the  canal.  This  foot-path,  we  may  infer 
from  the  evidence,  was  as  much  used  in  connection  with  the 
use  of  the  canal  as  the  canal  itself  was  used.  It  had  ever 
been  so  used  before,  and  was  so  used  at  the  time  of  the  making 
of  the  lease,  and  has  been  ever  since,  until  in  1881,  with  cer- 
tainly the  knowledge  and  consent,  and  without  objection,  of  the 
lessors. 

“It  is  the  rule  that  whenever  a thing  is  granted,  all  and 
every  easements  necessary  to  its  beneficial  enjoyment  will  pass. 
(Angell  on  Watercourses,  secs.  158,  358).  Although  this  foot- 
path was  not  absolutely  necessary  for  the  use  of  the  canal,  as  is 
the  toir-path  in  the  case  of  an  ordinary  canal  where  the  mode 
of  propelling  boats  is  by  animal  power,  still  its  use  ivas  an 
actual,  constant  incident  of  the  canal’s  use, — such  a conven- 


33 


ioiicc  therein,  and  aecessory,  and  so  tar  neee.ssary,  that  its  us(.* 
may,  not  iinpro})erly  we  think,  be  regarded  as  appurtr.iuntl  to 
file  vanaL  and  passing  by  the  laasr  ihrreof/’  (110  HI.,  7o-f).) 

.“In  ]\Ioryan  et  al.  v.  h*ass  at  (d,,  14  Fed.,  dod,  tln^  ('onrt 
Drummond,  d.  says:  ‘The  jury  found  a verdict  for  the  plain- 
tiffs in  this  case,  under  the  instructions  of  the  court,  and  th(‘ 
defendants  liave  made  a motion  for  a new  trial.  Tt  was  an  ac- 
tion of  ejectment  bronglit  for  a strip  of  land  about  17  feet  wide, 
more  or  less,  lying  on  the  canal  basin,  and  claimed  to  be  the 
northern  part  of  lots  562  and  563  of  Hanna’s  Addition  to  Fort 
? Wayne.  Lots  562  and  563  were  each  50  feet  wide,  and  bounded 
on  the  east  by  Harrison  street,  on  the  south  by  Pearl  street, 
and  on  the  north  by  the  canal,  or  canal  land.  On  the  plat  which 
Hanna  made,  and  which  was  recorded,  the  depth  of  these  lots 
north  and  south  was  marked  as  163  feet,  but  the  lines  of  the 
lots  extended  to  the  canal  basin,  and,  as  the  court  thought,  and 
so  instructed  the  jury,  they  were  intended  by  Hanna  to  extend 
to  the  canal,  and  therefore  the  northern  boundary  of  these  lots 
was  on  the  line  of  the  canal,  whether  it  was  more  or  less  than 
163  feet  north  of  Pearl  street.  The  court  did  not  instruct  the 
jury  that  this  north  line  w^as  necessarily  the  water  line  of  the 
basin,  but  laid  down  some  rules  to  govern  the  jury  as  to  the 
quantity  of  land  that  was  covered  by  the  canal,  stating  that 
it  included  the  bottom,  sides,  and  the  tow-path,  and  any  portion 
of  the  adjoining  banks  that  w^ere  appropriated  by  the  canal  com- 
missioners and  used  for  the  purposes  of  the  caned,  stating  at 
the  same  time  that  as  the  canal  was  intended  as  a means  of 
communication  by  watei',  it  must  be  assumed  that  certain  por- 
,,  tions  of  its  banks  'were  to  be  used  for  the  purposes  of  com- 
rnerce,  and  for  receiving  and  delivering  freight  along  the  line 
of  the  canal ; and  the  court  also  stated  that  there  was  nothing 
in  the  evidence  to  indicate  how  far  from  the  water  line  on  the 
banks  of  the  canal  the  right  of  the  commissioners  or  owners 
of  the  canal  extended,  and  that  in  those  cases  where  no  ])or- 
tion  of  the  banks  of  the  canal  had  l)een  appropriated  for  the 
; uses  of  the  canal,  it  must  be  assumed  that  the  owners  of  ad- 
joining lots  abutting  on  the  canal  wmuld  own  their  property  to 
. the  canal,  subject  of  course,  to  the  uses  of  the  canal,  as  hereto- 
fore stated. 

can  have  no  doubt  that  these  instructions  thus  given  by 
the  court  were  substantially  correct,  and  that  they  laid  down 
the  true  rules  upon  the  subject.” 

In  State  of  Ohio,  ex  red,  etc.  v.  C.  C.  By.  Co.,  37  Ohio  St.  157,  the 
court  holds : 

'‘This  was  a petition,  in  the  nature  of  an  information, 
brought  by  the  Attorney  Geneial  of  the  State  of  Ohio,  its  ob- 
ject being:  ’ 

^ "To  determine  the  authority  of  the  defendant  to  occupy  and 


iis(^  as  a ti'a(‘k  i‘ov  its  I'ailway  a ])()rti()n  of  tlie  ])enne  bank  of 
tlio  Miami  k Krio  (kinal,  belonging  to  tlie  state,  within  the 
(y\)iinty  of  ilaniilton.  This  involves  the  poiver  of  the  hoard 
of  public  worls  of  the  state  to  enter  into  the  agreement  here- 
inafter set  forth,  witli  the  defendant,  under  wliieh  the  latter 
elainis  the  right  to  ])ernianently  oceui)y  and  use  for  the  pur- 
poses of  its  track,  that  portion  of  the  l)erine  bank  of  said  canal 
lying  ])etween  Broadway,  in  the  city  of  Cincinnati  and  the  six 
mile  stone,  north  of  said  city.  It  is  alleged  that  this  portion  of 
the  canal  is  in  constant  use  for  the  purposes  of  navigation; 
that  about  one-third  of  the  distance  is  composed  of  embank- 
ment ; one-third  of  the  embankment  on  one  side,  and  excava- 
tion on  the  other,  and  exclusively  of  excavation  for  the  residue 
of  the  distance. 

^‘The  petition  charges,  that  the  contract  under  tvhidh  the  de- 
fendant claims  to  act  is  without  authority  of  law,  and  is  void, 
that  defendant  is  making  preparations  to  construct  and  main- 
tain its  track  on  said  bank,  and  threatens  to  permanently 
occupy  and  use  the  same  as  a railroad,  which  if  consummated, 
will  constitute  a permanent  trespass  on  the  property  of  the 
state,  and  be  a violation  of  its  rights. 

‘ ‘ The  answer,  after  setting  out  the  corporate  character  of  the 
defendant  under  which  it  is  authorized  to  construct  and  operate 
a railroad  between  the  termini  named,  denies  that  it  is  acting 
without  authority  of  law.  It  sets  up  a contract  made  with  the 
hoard  of  public  tvorks,  under  certain  orders  of  the  board  dated 
January  4,  1881,  the  terms  and  conditions  of  which  were  in  all 
respects  complied  with  by  defendant,  by  virtue  of  which  it  has 
the  latufyl  right  to  build,  maintain  and  operate  its  railroad  on 
and  along  said  bank  between  the  points  named,  in  consideration 
of  the  payment  of  $500  per  annum,  and  the  performance  of 
certain  requirements  of  the  board  of  public  works. 

^ ‘ The  most  cursory  examination  of  the  numerous  provisions 
of  laiv  relating  to  the  public  works  of  the  state  will  show,  that 
while  the  legislature  has  freely  granted  the  largest  powers  to 
the  board  for  this  purpose,  it  has  at  the  same  time,  by  regula- 
tions, prohibitions  and  penalties,  sought  to  guard  this  property 
from,  all  encroachments , individual  or  corporate,  and  to  pre- 
vent the  acquisition  of  rights  or  easements  in  the  canals  or  its 
hanks  except  by  express  authority  of  laws  passed  fgr  that  pur- 
pose. The  board  of  public  works  possess  no  poiver  to  grant 
rights,  easements  or  privileges  for  private  advantage,  unless 
expressly  authorized  by  law.  The  statute  authorizing  the 
abandonment  or  sale  of  certain  sections  of  the  canals,  the  trans- 
fer to  railroads  and  cities  for  their  purposes,  of  other  sections, 
the  permission  granted  by  statute  to  use  the  berme  bank  in 
certain  instances,  the  leasing  of  the  canals,  the  leasing  of  the 
surplus  waters,  the  sale  of  ice,  and  the  restrictions  as  to  cross- 


iiig-  by  public  rouds,  and  by  railroads,  all  sliow  that  the  board 
in  the  opinion  of  the  legislature  possessed  no  implied  power  to 
grant  rights  and  privileges,  or  to  create  easements  or  burdens 
upon  this  public  property  in  favor  of  individuals  or  corpora- 
tions. In  each  of  these  cases  express  authority  was  conferred 
by  statute/’ 

^^But  it  is  urged,  that  the  board  of  public  works  have 
not  agreed  to  a/nythmg  tending  to  destroy  or  impair  the  public 
uses  to  which  the  canals  have  been  dedicated,  but  that  this  con- 
tract is  imt ended  to  simply  add  an  additional  use,  by  so  improv- 
ing the  berme  bank  so  as  to  be  more  useful  to  the  canal.  This 
is  not  a question  of  what  is  expedient  or  beneficial  to  the  pub- 
lic. It  is  a question  of  power.  If  the  board  is  vested  with  a 
discretion  to  subject  the  berme  bank  of  the  canals  to  a new 
USE  FOREIGN  TO  THE  ORIGINAL  PURPOSE,  and  Competing  with  the 
canal  as  a means  of  transportation,  ivhere  is  the  limit  of  that 
discretion?  The  exercise  of  this  discretion  ivould  in  time  great- 
ly impair  the  revenues  of  the  canals,  and  ultimately  destroy  the 
canals  themselves.  ^ ^ 

In  18  Ohio  St.  92,  Hatch  v.  C.  & I.  R.  R.  Co.,  it  was  held: 

‘‘The  question  here  raised  was  whether,  under  the  twelfth 
section  of  the  Act  of  May  1,  1852,  of  Ohio,  to  provide  for  the 
creation  and  regulation  of  incorporated  companies,  etc.,  a rail- 
road company  may,  in  the  exercise  of  the  delegated  powers 
of  eminent  domain,  appropriate  to  its  use,  for  the  purposes  of 
a railroad,  the  land  constituting  the  body  of  a canal  acquired 
by  the  exercise  of  like  delegated  power,  by  a canal  company, 
for  the  purposes  of  such  canal,  against  the  consent  of  the  lat- 
ter. It  was  held  that  an  appropriation  of  land  by  a canal  com- 
pany for  the  purpose  of  a canal,  in  the  absence  of  any  contract 
or  statute  to  the  contrary,  ivill  be  presumed  to  have  included 
land  for  a berme-bank  as  tvell  as  for  a toiv-path;  and  the  exclu- 
sive power  of  the  company  over  the  land  necessary  for  such 
bank  is  the  same,  whether  it  consists  of  a natural  or  artificial 
deposit  of  earth.” 

In  this  case,  the  trial  court  instructed  the  jury  as  follows: 

' “I  charge  you,  however,  that  a berme  bank  was  needed  for 
the  use  of  a canal,  and  the  necessity  for  it  was  not  dispensed 
with  in  consecjuence  of  the  location  of  the  canal  at  the  base  of 
a hill;  that  it  anstvered  the  same  purpose  there  as  elsewhere, 
namely,  to  support  the  crater,  and  could  also  be  employed  for 
other  incidental  ]uirposes,  as  at  other  places.  It  was  there- 
fore the  duty  of  the  canal  company  to  appro])riate  or  other- 
wise acquire  land  for  a berme  bank  through  the  property  of 
the  plaintiff,  of  the  dimensions  of  the  herme  bank  of  the  Miami 
Tanal ; and  the  canal  company  must  be  presumed  to  have  done 
its  duty  in  that  respect.” 


36 


This  instruction  was  assigned  for  error  by  tlie  i*ailroad  com- 
])any,  but  the  Supreme  C^ourt  of  Ohio  says: 

“In  what  was  said  by  the  court  helow  in  its  charge  to  the 
jui'y,  in  res])e(d  to  tlie  berine  bank  of  the  canal,  we  see  no  er- 
ror. A benne  hank  for  the  canal  was  necessary  for  the  uses 
of  the  canal;  and  whether  it  (‘onsisted  of  a natural  or  arti- 
fi(‘ial  deposit  of  earth  (*an  make  no  diff'erence.  It  must  have 
fomaed  a part  of  the  orlfpimd  appropriation  tjy  the  canal,  un- 
less tJiere  were  a s])ecial  agreement  to  the  contrary,  and  its 
dominion  over  it  u'as,  in  lair,  exclusive d' 

In  Edwards  v.  Schlimd,  21  Ohio  C.  0.  193,  in  determining  what 
lands  were  and  were  not  actually  taken  by  the  State  for  the  con-^ 
struction  of  a state  canal,  eitlier  by  condemnation  or  i)urchase,  at 
the  time  of  its  construction,  of  wliich  no  record  was  preserved,  the 
court  holds : 

“That,  in  completing  tlie  canal,  the  canal  commissioners 
might  easily  have  entered  upon  adjoining  land  of  the  owner 
and  have  driven  piles,  etc.,  along  the  edge  of  the  river  to  protect 
the  canal  from  being  washed  away  by  the  river,  and  that  the 
mere  taking  possession  of  such  lands  for  that  purpose  is  not 
to  be  construed  as  having  given  the  State  the  right  to  that 
land;  but  land  between  tlie  canal  and  the  river,  over  which,  by 
the  evidence,  it  appears  that  a slope  from  the  canal  hanks  ex- 
tends substantially , if  not  entirely,  to  the  river  and  ivas  made 
for  the  purpose  of  sustaining  the  tow-path,  is  hekl  to  he  State 
land,  on  the  theory  that  the  State  took  actual  possession  of 
so  much  of  the  land  as  was  necessary  to  form  the  bed  and 
hanks  of  the  caned,  and  the  tow-path,  and  the  hank  necessary  to 
hold  the  tow-path  and  keep  it  in  position.’^ 

In  Pennsylvania  Coal  Co.  v.  Harris,  101  Pa.  St.  80,  it  was  held, 
the  land  which  a state  took  for  a canal  will  be  presumed  to  have 
been  of  the  width  necessary  for  the  reasonable  enjoyment  of  all 
rights  appertaining  to  a canal. 

In  11  Pa.  (1  Jones)  Schuylkill  Nav.  Co.  v.  Berks  County 
Com’rs,  it  was  held,  that  an  incorporated  caned  inclueles  as  con- 
stituent parts,  the  bed,  herme  hank,  tow-paths,  and  toll  houses,  and 
collectors’  offices,  and  if  the  canal  is  not  subject  to  taxation,  the 
property  forming  such  constituent  parts  are  not  taxable. 

In  Western  Pa.  R.  Co.  v.  Childs,  3 Pittsb.  K.  168  it  was  held.  The 
vendees  of  public  works  of  Pennsylvania,  and  those  claiming  under 
them,  have  a title  in  fee  simple  to  edl  the  land  occupied  by  the  canal, 


:i7 

including  that  covered  by  the  slopes  and  emhanhments  originally 
constructed j and  the  natural  accretions  of  the  same  from  time  to 
time. 

We  respectfully  sutunit  that  the  above  and  foregoing  decisions 
sustain  our  contention  that  the  ninety  foot  strip  on  each  side  of 
the  Illinois  and  Michigan  Canal  constitutes  and  is  an  integral  part 
of  the  canal  itself,  and  as  such,  cannot  be  alienated  or  put  to  any 
use  other  than  that  which  pertains  to  the  canal. 

In  the  laws  of  1871-2,  page  788  (Canal  Compilation,  p.  150)  is  a 
Resolution  passed  by  the  Legislature  pertaining  to  the  ‘‘Illinois 
and  Michigan  Canal-Lease.”  By  the  preamble  of  said  Resolution 
it  is  recited  that  on  December  2,  1870,  the  Board  of  Trustees  of  the 
Illinois  and  Michigan  Canal  executed  a lease  to  one  Adam  Smith 
a portion  of  this  ninety-foot  strip,  thirty  thousand  feet  in  length, 
and  that  Resolution,  speaking  of  that  lease,  recites,  “and  it  being 
the  property  of  the  Illinois  and  Michigan  Canal”  and  further  re- 
cites that  in  the  judgment  of  the  General  Assembly  said  paper  or 
lease  is  not  binding  on  that  State  of  Illinois  and  that  it  is  contrary 
to  the  interests  of  the  people  thereof  that  said  Smith  or  any  other 
person  should,  upon  any  pretense  whatever,  be  permitted  to  have 
or  acquire  any  interest  in  said  strip,  or  any  right  to  use  or  occupy 
the  same  in  any  manner  or  to  any  extent  whatever.  Therefore, 

“Resolved  by  the  House  of  Representatives,  the  Senate  con- 
curring herein,  That  said  paper  so  executed  and  chdming,  be 
and  the  same  is  hereby  declared  not  valid,  and  not  binding 
upon  the  State,  and  tliat  the  Governor  l)e  requested  to  instruct 
the  Attorney  General  of  this  State  to  give  notice  thereof  to 
said  Adam  Smith  and  to  the  Board  of  Trustees  of  said  Illinois 
and  Michigan  Canal  and  to  institute  and  prosecute  such  legal 
and  ])roper  proceedings  as  may  be  necessary  in  the  case  to 
disaffirm  the  same  and  to  protect  the  rights  of  the  State.” 

The  policy  of  the  State  with  reference  to  this  ninety  foot  strip 
is  certainly  most  clearly  set  forth  in  the  above  preamble  and  reso- 
lution, and  expresses  the  determination  on  the  part  of  the  state 
not  to  permit  the  ninety  foot  strip  to  be  interfered  with,  and  ex- 
pressly characterizes  the  ninety  foot  strip  as  being  a part  of  the 
Illinois  and  Michigan  Canal. 

Again  in  the  Act  of  March  7,  1872,  Laws  of  1871-2,  page  213  un- 
der Section  5 entitled  “Power  to  lease  lands”  in  providing  for  the 


38 


leasing  of  lands,  (contains  tlie  following  proviso.  ‘‘Provided,  how- 
ever, that  no  part  of  the  ninety  foot  strip  along  the  canal,  or  any 
of  the  real  estate  in  the  city  of  Chicago,  shall  he  sold.’’ 

The  last  expression  of  the  Legislature  prior  to  the  making  of 
the  lease  in  controversy  in  this  suit  was  the  Act  of  April  21,  1899, 
Laws  of  1899,  page  82,  entitled,  “An  Act  to  amend  Section  8 of  an 
Act  to  lievise  the  law  in  relation  to  the  Illinois  and  Michigan 
Canal  for  the  improvement  of  the  Illinois  and  Little  Wabash 
Livers,  approved  March  27,  1874,  in  force  July  1,  1874,  as  amended 
by  the  Act  of  June  19,  1891,  in  force  July  1,  1891”  (Canal  Com- 
pilation, p.  173).  Both  the  Act  of  1891  and  of  1899,  deal  exclu- 
sively with  Section  8 of  the  Act  of  1874.  Subsection  8 of  Section 
8 of  this  Act  appears  to  be  relied  upon  by  defendant  as  shown  by 
the  answer  to  this  bill,  which  enumerates  the  powers  of  the  com- 
missioners, and  said  Subsection  8 is  in  the  following  language: 

“To  sell  and  convey  whenever  in  their  judgment  the  inter- 
ests of  the  State  will  be  promoted  thereby,  any  canal  lands  or 
lots  now  owned  by  the  State,  other  than  those  connected  ivith 
water-power,  upon  the  said  canal,  and  the  ninety-foot  strip 
along  the  canal,  etcd’ 

Here  again  this  ninety  foot  strip  is  protected.  In  fact,  there  was 
no  authority  existing  in  the  commissioners  to  sell  said  ninety  foot 
strip  at  the  time  of  the  making  of  this  lease.  If  any  authority  can 
be  found  for  its  leasing  it  must  be  found  in  the  Act  of  April  21, 
1899,  Laws  of  1899,  page  82,  which  Act  amends  Section  8 of  the 
Act  of  1874  above  referred  to,  as  previously  amended.  Subsection 
5 is  as  follows  : 

“Fifth — To  lease  from  time  to  time  any  of  the  canal  lands  or 
lots  owned  by  the  state;  Provided,  no  lease  shall  be  for  a period 
exceeding  twenty  years.”  The  ninety  foot  strip  was  neither  lands 
nor  lots.  It  was  canal. 

Then  Subsection  6 of  the  Act  of  1899  provides  for  the  leasing  of 
water-power  and  lands  and  lots  connected  therewith,  and  provides 
that  said  lands  may  be  leased  for  a period  of  twenty  years,  and  also 
provides  for  an  extension  of  twenty  years.  The  so  called  flowage 
lease  or  contract  seems  to  have  been  attempted  to  be  made  under 
the  provisions  of  that  subsection,  hut  none  of  the  conditions  con- 
tained in  that  subsection  were  observed  in  the  mahing  of  the  lease. 


39 


that  is,  in  the  thirty  days  notirc  i’(‘(juir(Ml  hy  that  s(‘cti()n  for  tho 
leasing’ of  any  water-})()vver  and  lands  and  lots  ('onn(;et(*d  therewith, 
hi  other  words,  it  seems  that  in  the  drafting  of  tln^  so  cal  hid  flow- 
age  contract  under  consideration,  the  attempt  was  made  to  make  a 
lease  under  the  provisions  of  this  Subsection  fi  of  the  Act  of  April 
2,  1899,  and  at  the  same  time  they  did  not  regard  the  lands  thus 
leased  as  tvater-poiver  and  lands  and  lots  connected  therewith,  and 
did  not  comply  with  the  conditions  of  notice  provided  in  that  sec- 
tion. Said  Subsection  8 of  said  last  amended  Act  expressly  re- 
serves the  ninety  foot  strip  from  sale  by  the  Canal  Commissioners. 

We  respectfully  submit  that  the  above  and  foregoing  shows  con- 
clusively that  the  policy  of  the  State,  up  to  the  time  of  the  making 
of  the  flowage  contract  by  the  Canal  Commissioners  to  Griswold 
and  by  him  assigned  to  the  defendant,  was  that  this  ninety  foot 
strip  of  land  shoidd  not  he  alienated  hy  lease  or  otherwise;  i\\ni  no 
express  authority  had  been  given  to  the  Canal  Commissioners  to 
alienate  this  ninety  foot  strip,  and  without  special  authority  given 
to  them,  it  being  a part  and  parcel  of  the  canal,  it  could  not  be 
leased  or  sold.  The  reasons  for  this,  we  submit,  are  clear.  This 
ninety-foot  stri])  was  needed  for  the  sipiport  of  the  tow-path  and 
berme  banks  of  the  canal  and  was  so  regarded  by  the  State,  and 
accordingly,  its  alienation  was  prohilhted  or  not  authorized.  People 
using  this  canal  for  the  transportation  of  grain,  lumber  and  other 
commodities  needed  a place  to  load  and  unload  the  boats  and  this 
ninety  foot  strip  was  necessary  for  the  reasonable  accommodation 
of  the  people  who  patronized  or  used  the  canal,  as  well  as  for  the 
support  of  the  canal  itself  and  the  other  reasons  heretofore  ex- 
pressed. 

The  Act  of  the  Legislature  of  Illinois  of  May  lb,  1905  (Laws 
1905,  page  81)  is  an  Act  to  amend  Section  8 of  the  Act  of  1874  as 
it  was  amended  by  the  Act  of  June  19,  1891,  and  by  the  Act  of 
April  21,  1899.  This  Act  went  into  effect  July  1,  1905.  This  Act 
enlarges  the  right  of  sale,  l)ut  in  so  doing,  contains  the  following: 

‘‘Provided  they  shall  not  sell  any  lands  or  any  ]:)ortion  of  the 
ninety-foot  stri])  along  the  canal  which  are  now  utilized  in  con- 
nection with  the  use  of  the  water-] )ower  u])on  the  said  canal, 
or  which  will  ])revent  or  interfei*e  with  the  |)ro})er  use  and  op- 
eration of  said  canal  as  a water  way,  et(r,” 
and  then  recpdres  the  consent  of  the  Governor  and  j)ublic  sale, 
etc.,  as  theretofore  existing. 


40 


! r this  stalute  (‘an  he  lield  to  authorize  the  sale  of  any  part  of  the 
nimhy  foot  sti*ip,  it  is  the  fii*st  statute  passed  l)y  the  Legislature  of 
LUinois  authorizing  the  sale  of  any  part  of  said  ninety  foot  strip, 
and  it  will  he  reineinhered  tliat  this  Ac^t  was  passed  and  went  into 
Forc'e  more  than  a year  after  the  making  of  the  eontrac'ts  between 
the  (kuial  Commissioners  and  Griswold  and  by  him  assigned  to  the 
defendant,  and  whichi  are  now  in  controversy  in  this  suit. 

Again  as  indicating  that  the  ninety  foot  strip  of  land  has  been 
regarded  by  the  'State  as  a part  and  parcel  of  the  canal,  the  Legis- 
lature by  its  Resolulion  of  May  (i,  1905  (Lows  of  1905,  page  401) 
submitted  to  the  electors  of  the  State  at  the  next  general  election 
held  after  the  adjournment  of  the  General  Assembly,  the  propo- 
sition as  to  whether  or  not  that  portion  of  the  Illinois  and  Michigan 
Canal  and  the  ninetij  foot  strip  on  each  side  thereof  lying  along  the 
line  of  the  new  channel  of  the  Sanitary  District  of  Chicago,  should 
be  sold  or  not.  In  this  they  again  recognize  the  ninety  foot  strip 
as  a part  of  the  canal  itself,  but  looking  to  the  use  of  the  Drainage 
District  channel  for  future  commerce,  submitted  the  question  to 
the  people  as  to  whether  or  not  that  portion  of  the  Illinois  and 
Michigan  Canal  should  be  sold. 

AVe  submit  that  under  this  showing,  and  the  policy  of  the  state 
as  manifested  thereby,  that  Item  Fifth  of  Section  8 of  the  Act  of 
April  21,  1899,  that  being  exactly  the  same  as  it  was  in  the  Act  of 
1874  and  in  the  amendment  of  1891  except  as  to  the  length  of  time 
a lease  could  be  made,  should  not  be  construed  as  giving  power  to 
the  canal  commissioners  to  lease  a ten-mile  ])ortion  of  this  ninety- 
foot  strip  to  anybody,  for  any  purpose,  and  certainly  not  for  the 
purpose  of  ftoodhig  the  ninety  foot  strip  and  the  herme  hank  and 
the  slopes  of  the  toic-path  to  the  top  thereof,  and  authority  to  raise 
the  tow-path  to  a liigher  grade  as  is  provided  in  the  contracts  or 
pretended  leases  in  controversy  in  this  suit,  regardless  of  ndiether 
or  not  it  will  injure  the  toir-path  and  other  parts  of  the  canal  or  not. 

If  any  purpose  can  be  determined  from  this  statute  to  authorize 
a leasing  of  any  portion  of  the  ninety  foot  strip,  a fair  construction 
of  it  would  limit  such  leasing  to  small  portions  of  the  ninety  foot 
strip  for  the  accommodation  of  the  patrons  of  the  canal,  and  as  in- 
cidental to  the  business  of  the  canal.  To  illustrate,  a grain  dealer 


41 


located  along  the  line  of  this  (*anal,  and  desirirjg  to  transjjort  grain 
tlironglit  the  ejmal  to  (diieago,  nnght  want  a strij)  a hundred  or  two 
liundred  feet  in  length  for  the  erection  of  an  elevator,  to  tlie  end 
that  grain  can  be  loaded  direct  from  the  elevator  into  a boat  on 
the  canal ; or  a Inmber  merchant  located  along  the  line  of  the  canal, 
using  the  canal  to  transport  his  lumber  from  Chicago  to  his  place 
of  business,  needed  access  to  the  basin  of  the  canal  for  the  purpose 
of  unloading  his  lumber  and  possibly  piling  the  same  on  the  outer 
part  of  the  ninety  foot  strip.  Permission  thus  to  use  the  ninety 
foot  strip,  or,  if  you  please,  leasing  that  much  of  the  strip,  might 
possibly  come  under  the  head  of  the  provision  of  leasing  the  lands 
as  provided  in  said  Subsection  5 above ; but  again  we  say  that  the 
lease  for  a purpose  entirely  foreign  to  anything  connected  with  the 
uses  of  the  canal  for  large  area  of  this  ninety  foot  strip  was  never 
contemplated  by  the  Legislature,  and  such  a leasing  is  ivithout  ivar- 
rant  or  authority.  In  making  this  statement  we  do  not  concede  that 
the  authority  existed  in  the  Canal  Commissioners  to  lease  any 
portion  of  the  ninety  foot  strip;  that  said  Subsection  5 above  does 
not  embrace  or  include  the  ninety  foot  strip;  that  the  express  action’ 
of  the  Legislature  pertaining  to  the  ninety  foot  strip,  when  taken 
in  connection  with  this  Subsection  5 and  construed  with  it,  forbids 
the  thought  that  it  was  the  purpose  of  the  Legislature  to  authorize 
the  leasing  or  sale  of  any  part  or  portion  of  said  ninety  foot  strip. 

Finally  the  Legislature  on  the  27th  day  of  November,  1907, 
passed  the  joint  resolution  (Laws  of  1907-8,  p.  101)  hereinbefore  set 
forth. 

IVe  therefore  respectfully  submit  that  Fxhibit  A (Abst.,  p.  28) 
and  B (Abst.,  p.  14),  the  first  being  the  so-called  ‘^flowage  (*on- 
tract”  and  the  second  the  lease  made  subject  to  the  said  tiowage 
contract,  are  each  and  both  outside  of  the  power  of  the  (linal 
Commissioners  to  make,  and  are  absolutely  void. 

THE  FLOWAGE  CONTRACT  (CLAUSE  9)  IN  EXPRESS  TERMS  AUTllORTZED 
THE  INVASION  OF  THE  CAN  AH. 

THIS  IS  ILLEGAL  AND  VOID. 

The  provisions  of  the  howage  contract  includes  among  other 
things,  the  following: 

^‘9th.  Said  party  of  the  second  part  is  hereby  authorized 


42 


to  enter  upon  the  lands  and  premises  of  tlie  State  of  Illinois, 
l)art  and  pareel  of  flie  Illinois  and  Michigan  Canal,  and  to  enter 
upon  said  eanal  itself  in  the  manner  and  to  the  extent  it  shall 
he  necessary,  (1)  to  raise  and  maintain  the  towpath  as  above 
]>rovided;  and  (2)  to  attach  and  build  said  dam  or  other  works 
on  said  towpath  bank  as  lierein  y)rovided;  and  (8)  to  repair, 
maintain  or  renew  the  same  as  shall  become  necessary  to  the 
preservation  thereof.  ’ ’ 

This  is  a sjDecitic  authority  to  enter  upon  the  canal  itself  to  the 
extent  needful  to  attach  and  build  the  dam  and  repair,  maintain 
and  renew  it. 

This  subordinates  the  canal  to  the  flowage  contract,  and  it  will  be 
needful  to  enter  upon  the  canal  and  stay  in  the  canal  with  some 
portion. of  these  works  from  fbe  beginning  to  the  end  of  their  ex- 
istence. 

It  has  already  proved  necessary  and  the  defendant  has  already 
entered  upon  the  canal  as  the  proof  shows.  It  has  filled  into  the 
canal  with  filling  for  the  purpose  of  broadening  the  tow-path  to  the 
extent  of  about  5 feet.  Defendant’s  witnesses  say  this  five  feet 
of  broadening  material  lias  been  placed  upon  the  berm  of  the  canal 
so  as  to  deprive  the  bank  of  its  berm. 

In  course  of  time  it  will  form  a new  berm  by  washing  down  the 
new  material  into  the  bottom  of  the  canal.  (See  Ev.  of  Kramer, 
Abst..  359:  B.  Williams,  Abst.,  p]).  338-339.)  Every  such  invasion 
of  the  canal  is  a diminution  of  its  capacity  and  its  efficiency. 

The  right  to  give  away  a foot  of  the  canal  implies  the  right  to 
give  it  all  away. . 

There  is  no  such  right. 

‘‘2nd.  Said  party  shall  have  the  right  and  authority  to  flow 
the  ninety-foot  reserve  strip  of  the  Canal  in  Sections  25  and 
36,  T.  34,  E.  8,  and  in  Sections  31,  30,  29  and  20,  T.  34,  R.  9,  up 
to  the  canal  bank ; also  so  much  of  the  north  fraction  of  Section 
31,  T.  34,  R.  9,  as  lies  south  of  the  ninety-foot  reserve  strip 
along  the  towpath  side  of  the  Canal,  where  the  same  may  be 
overflowed  by  reason  of  the  construction  of  said  dam  and  other 
works  witli  the  crest  hereinbefore  specified,  together  w'ith  the 
right  to  flow  the  water  up  against  the  towpath  bank  of  the 
Canal.’’ 

The  other  provisions  of  the  contract  authorize  invasions  of  the 
canal  in  other  ways.  Clause  3 authorizes  the  defendant  to  excavate 


43 


ill  and  remove  tlio  fcuMior  and  alter  it  so  as  to  make  it  teiMl  the 
water-power  pool  instead  of  reedini»-  the  (‘anal.  Th(‘  feedcn*  its(*lf 
is  a part  of  the  eanal  and  tlie  rcanoval  and  alteration  of  it  is  a re- 
moval and  alteration  of  the  canal,  (danse  8 authorizes  the  defend- 
ant to  nse  the  gravel  and  other  material  lying  along  tlie  canal. 

The  defendant  proposes  to  occupy  all  of  the  ninety  foot  strip 
except  the  16  feet  occupied  by  the  tow-path.  This  strip  received  and 
sustains  by  lateral  support,  the  pressure  of  the  canal.  The  occupa- 
tion of  it  by  a water-power  pool  is  an  invasion  of  the  canal  itself. 
It  deprives  the  canal  of  lateral  support.  And  on  the  other  hand, 
the  strip  and  the  pool  upon  it  will  use  the  tow-path  and  canal  as 
lateral  support  for  the  pool.  This  is  an  appropriation  of  the  tow- 
path  and  canal  inconsistent  with  the  safety  of  the  canal. 

The  grant  to  Griswold  of  the  right  to  such  lateral  support  from 
the  tow-path  and  canal  is  beyond  the  power  of  the  Commissioners. 

It  is  too  clear  for  argument  that  these  invasions  of  the  canal  are 
acts  which  the  Commissioners  cannot  authorize.  They  are  foreign 
to  the  purpose  of  the  canal.  These  are  of  the  class  of  acts  to  which 
Lord  CoTTENHAM  referred  in  Attorney  (General  v.  Forbes,  2 Mylne 
& Craig,  123.  Lord  Cottenham  said : 

^‘In  Attorney  General  v.  Johnson,  2 Wils  Ch.  87,  18  Revised 
Rep.  156,  the  objection  to  the  jurisdi(5tion  was  attempted  to  be 
raised.  The  defendants  in  that  case,  the  corporation  of  the 
City  of  London,  were  authorized  by  act  of  parliament  to  do 
what  was  necessary  to  be  done  in  the  exercise  of  their  duty 
as  conservators  of  the  river  Thames;  but,  in  that  particular 
instance,  they  had  assumed  to  themselves  a right  to  carry  on 
or  sanction  o])erations,  which  created  a nuisance  to  the  king’s 
subjects;  and  the  court  accordingly  interfered  to  prevent  them 
from  so  exercising  their  undoubted  legal  ])owers.  To  say  that 
this  court,  when  it  interferes  in  such  a case,  is  acting  as  a court 
of  appeal  from  the  court  of  quarter  sessions  is  anything  but  a 
correct  representation  of  the  fact.  The  jurisdiction  is  exer- 
cised, not  for  the  jmrpose  of  overruling  the  ])ower  of  others,  by 
way  of  appeal  from  their  authority,  but  for  the  purpose  of 
exercising  a salutary  control  over  all  for  the  protection  of  the 
public.” 

‘‘The  allegations  of  fact  appearing  on  the  face  of  this  infor- 
mation and  bill  may  be  pure  fiction  ; but  I am  to  take  the  record 
as  it  stands,  and  finding  that  h represents  a case  where,  if  the 
act  proposed  to  be  done  be  carried  into  effect,  a great  public 


44- 


misc'liief  will  he  o(*easione(l ; I tliink  tlie  obvious  result  of  all  the 
authorities  is,  that  \ am  ])oun(l  to  interfere.” 

Again  \jord  CoTTENirAM  said  in  Frewen  v.  Lewis,  4 Mylne  & 
Craig,  249: 

‘‘  (1 ) I api)rehend  that  the  limits  within  which  this  court  in- 
terfei-es  with  the  acts  of  a body  of  public  functionaries,  con- 
stituted like  the  poor  law  commissioners,  are  perfectly  clear 
and  unambiguous.  So  long  as  these  functionaries  strictly  con- 
fine themselves  within  the  exercise  of  those  duties  which  are 
confined  to  them  by  the  law,  this  court  will  not  interfere.  The 
court  will  not  interfere  to  see  whether  any  alteration  or  regu- 
lation which  they  may  direct  is  good  or  bad;  but  if  they  are 
departing  from  that  power  which  the  law  has  vested  in  them; 
if  they  are  assuming  a power  over  property  which  the  law  does 
not  give  them,  this  court  no  longer  considers  them  as  acting 
under  the  authority  of  that  commission,  but  treats  them, 
whether  they  be  a corporation  or  individuals,  merely  as  per- 
sons dealing  with  property  without  legal  authority.” 


THE  RELATION  OF  THE  NINETY-FOOT  STRIP,  BERM  BANK  AND  TOW-PATH  TO 
THE  CANAL  AND  THE  EFFECT  OF  THE  PROPOSED  FLOWAGE  THEREON. 

Summary  of  Testimony  of  Kramer. 

P.  OF 

TRANS. 

689  The  banks  of  the  canal  are  necessarily  parts  of  the  canal  to 
hold  the  water  in  the  canal.  There  is  now  a difference  of  23 

690  feet  in  height  between  the  top  of  the  tow-path  and  the  water  in 
the  river.  At  the  point  where  the  dam  is  being  constructed 

691  the  to])  of  the  tow-path  is  from  12  to  16  feet  wide. 

692  At  a slope  of  2 to  1 on  the  river  side,  the  bank  should  have 
36  feet  of  width  in  addition,  making  52  feet.  On  the  canal  side 
there  should  be  a slope  of  3 to  1 requiring  18  feet  of  width. 

On  the  tow-path  side  there  should,  in  addition,  be  a berm  6 
feet  high  with  a slope  of  3 to  1,  adding  18  feet  to  the  ^vidth. 
The  total  width  of  the  hank  at  the  point  of  the  dam  under  the 
present  height  of  the  water  should  he  88  feet.  If  the  top  were 
raised  2 feet  higher  16  feet  of  added  width  would  be  necessary. 

693  105  feet  would  be  the  minimum  width  of  bank  for  the  proper 
maintenance  of  the  canal  if  this  tow-path  is  raised  2 feet 

694  higher  than  it  is  now.  If  this  dam  is  built  as  proposed  and 
the  water  is  flowed  up  against  the  tow-path  bank,  it  will  wash 
the  bank  and  the  action  of  the  waves  will  cut  a berm  into  the 
bank,  and  unless  it  is  properly  protected,  will  destroy  the  tow- 

695  ])ath.  If  the  hank  is  not  paved  with  big  stones,  the  water  will 

696  eat  into  the  canal  bank.  The  riprap  there  now  extends  about 


45 


luilf  the  way  up.  The  efTeet  oi‘  the  flowagc*  on  tli(*  hank  wjll 
eevtaiiily  he  hurtful. 

()99  The  river  iu  liigli  water  would  overflow  tlie  darn  and  woul(J 
overflow  the  tow-])ath  and  ruu  into  the  eaual.  Ili^h  water  of 
1892  would  come  to  the  top  of  the  tow-patli.  A few  years  it 

700  was  higher  by  several  hundred  thousand  eiihic  feet  per  min- 
ute. If  there  are  sufficient  Taintor  gates  in  the  dam  to  take 
care, of  this  high  water  then  there  would  be  no  height  of  fall, 

701  and  no  power.  They  are  now  raising  and  enlarging  the  top 
of  the  tow-path  bank,  filling  on  botli  sides,  but  they  are  filling 
up  the  Illinois  and  Michigan  Canal  up  to  the  beginning  of  the 

702  deep  water  in  the  canal.  It  is  not  a durable  rock,  it  ought  not 
to  be  called  rock.  It  is  wliat  I should  term  a shale.  It  will 
disintegrate  after  a year  or  two  of  exposure. 

In  the  work  they  are  doing  tlie  slope  has  been  steepened  on 
the  river  side.  In  most  of  the  places  they  have  thrown  rocks 
on  the  river  side  so  that  the  slope  is  1 to  1 or  less  than  1 to  1. 

703-4  The  new^  tilling  just  about  struck  the  toe  of  the  canal  bank. 
The  slope  will  be  much  steeper  than  it  used  to  be.  I had 
charge  of  the  construction  of  the  canals  at  Marseilles.  One 
was  about  a mile  long  and  another  half  a mile  long  and  an- 

705  other  a quarter.  I worked  on  the  Chicago  Sanitary  District 
for  about  7 or  8 years.  I built  high  banks  20  feet  high  on  the 
Marseilles  Canal  25  feet  wide  with  slopes  from  one  and  a 
half  to  one  to  two  to  one  on  each  side. 

708  The  plan  of  this  work  was  familiar  to  me.  I spent  four 
days  right  there  taking  soundings  over  the  place  in  1900.  .1 
was  in  charge  of  the  party  making  the  soundings  and  to})0- 
graphical  survey  under  Mr.  Munroe’s  instruction  with  a view 
to  the  construction  of  the  dam  and  ])ower-house  at  Dresden 
Heights. 

709  I advised  Mr.  Alunroe  then  and  since  in  regard  to  the  feasi- 
bility and  practicability  of  building  that  proposed  dam  and 
works.  That  was  in  the  spring  of  1904.  The  original  bank 

711  was  a good  bank.  There  have  been  breaks  along  the  tow-iuitb 
on  account  of  high  water.  The  slope  is  not  regular.  The  old 
riprap  has  a slope  of  about  24  to  1 and  the  other  part  2 to  1. 

712  The  high  water  of  1902  came  up  just  about  to  the  top  of  that 
dam.  The  Des  Plaines  carried  more  water  in  1904  than  in 
1902. 

714  The  pool  above  the  dam  would  never  be  a benefit  to  the  old 

715  canal  bank.  Disturbing  a bank  which  has  been  in  position  for 
50  years  would  never  make  it  any  better.  There  is  a theo- 
retical strain  on  the  bank  from  the  water  in  the  canal,  but  it 
is  so  slight  that  you  could  not  speak  of  it  as  a strain.  It 
would  wash  out  the  bank. 

716  In  properly  constructing  you  should  }>ave  the  bank  from 


4G 


lli(‘  pros(‘Tit  rij)i-a|)  io  the  tof)  and  ])ave  tlio  tow-patli  and  pave 
the  canal  side  of  the  bank. 

The  wash  and  debris  and  action  of  the  current  would  cer- 
taiidy  do  more  damage  tlian  the  pressure  would  exert  to  help 
carry  the  water  in  the  canal. 

720  1 don’t  think  the  raising  of  the  tow-path  2 feet  would  be 
enough.  To  properly  riprap  the  bank  and  pave  it  from  top 
to  bottom  and  on  both  slopes  would  add  about  $500,000  to 
your  expenditure. 

I would  not  disturb  the  canal  bank  on  the  river  side  at  all, 
I would  dredge  the  old  canal  and  continue  the  riprap  from  the 
present  point  G feet  below  the  bank  up  to  the  top  and  reduce 
the  slope,  carrying  it  out  into  the  canal,  dredging  the  canal 
and  building  up  the  bank  on  that  side.  It  would  practically 
mean  the  construction  of  a new  canal. 

721  I don’t  think  any  company  organized  for  gain  would  spend 
a half  million  dollars  in  improving  the  canal  bank.  It  would 
simply  mean  the  impossibility  of  the  scheme.  I recommended 

722  dredging  the  canal  to  Mr.  Munroe. 

(By  counsel  for  the  defendant.)  Did  you  give  Mr. 
Munroe  the  figures  that  it  would  cost,  a detailed 
estimate  of  such  work  I 

Ans.  I would  not  like  to  go  into  the  transactions  I had  at 
that  time  because  they  were  confidential  and  they 

are  still  confidential  so  far  as  I am  concerned.” 
* * * 

741  When  I advised  Mr.  Munroe  in  1904  on  the  feasibility  of  the 
dam  near  this  site,  there  were  no  plans  or  specifications  except 
a report  made  on  the  proposition  which  is  still  in  existence. 
I had  in  mind  the  practicability  in  expense  as  well  as  the  pos- 
sibility, and  also  the  protection  of  the  canal  bank.  I would 
rather  not  go  into  that  because  it  is  confidential. 

742  (Counsel  for  State)  C‘We  ask  counsel  for  the  defendant  if 

they  will  relieve  witness  from  the  confidential  fea- 
ture and  let  the  witness  answer.” 

(Counsel  for  Defendant)  : cannot  relieve  him  because 

the  statements  were  made  before  the  defendant  had 
anything  to  do  with  it  and  Mr.  Munroe  has  left  the 
room.” 

723  The  Witness : The  proper  way  would  have  been  to  take  out 
the  riprap  first  and  put  them  in  new.  I don’t  think  you  could 
ever  make  another  bank  like  that  by  altering  it  and  make  it  as 
good  as  it  has  been.  If  you  don’t  build  a dam  it  would  be 
better  to  leave  it  just  as  it  was.  If  you  build  a dam,  you  have 
to  change  the  entire  condition  of  the  bank.  The  width  of  the 

727  present  bank  is  about  70  feet.  In  making  an  earth  bank  you 
would  leave  a berm  so  that  the  action  of  the  wind  would  not 


47 


nlT(H*i  it,  that  is  tlie  borni.  44ig  water  will  make  its  own  f)(}rm 
oil  tlie  bank. 

728-9  I think  it  necessary  to  pave  the  si(l(‘  of  the  liank  ami  tow- 
path  beeaiise  the  Des  Plaines  river  is  very  nru'ertain.  We 
cannot  tell  liow  nmcli  water  will  go  down  there.  Tlie  Drain- 
age Canal  figures  on  850,000  cubic  feet  per  minute  and  the 
high  water  of  1904  was  800,000  to  a million,  that  will  give  you 
1,850,000  cubic  feet  per  minute  to  provide  for.  You  will  have 
to  ])ave  the  tow-path  if  you  only  Iniild  it  to  the  height  you 
want  to  build  it. 

With  enough  gates  you  could  prevent  the  water  from  over- 
flowing the  tow-path. 

730  You  should  pave  it  up  to  the  point  the  water  is  expected  to 
rise  on  the  slope.  You  can’t  foretell  the  water  that  will  come 
down  from  the  river.  If  you  build  a dam  there  you  would 
always  have  to  figure  on  the  water  running  over  the  tow-path. 

732  I would  pave  right  to  the  top  even  if  I could  maintain  the  ele- 
vation of  the  water  at  80.  I would  pave  the  canal  side  because 
overflow  water  would  wash  that  part  and  wash  it  worse  than 
the  river  side  and  wash  it' down  into  the  canal. 

733  If  the  river  in  high  water  overflows  the  bank  at  this  point 
without  any  dam,  then  it  would  still  more  overflow  the  bank 
with  a dam  there  no  matter  how  many  gates  were  put  in. 

738  Sometimes  the  water  is  let  out  of  the  canal  entirely  so  that 
you  have  no  water  in  the  canal.  Then  there  would  be  pressure 
on  the  bank  with  no  pressure  inside  to  sustain  it. 

739  The  lateral  pressure  of  the  canal  water  5 feet  deep  doesn’t 
amount  to  much.  Tliat  saturating  the  bank  with  water  would 
diminish  its  strength  especially  when  there  is  no  water  in  the 
canal.  The  water  in  the  Illinois  and  Michigan  canal  is  let  out 
each  winter.  It  is  drawn  out  from  November  up  to  April.  I 
have  seen  it  so  at  Marseilles  below  this  point  and  at  the  sum- 
mit level  above  this  point,  and  at  the  canal  level  above  this 
point.  It  is  let  out  all  along  the  canal  as  a protection  to  it 
against  frost  and  freezing.  It  would  not  be  a commercial 
proposition  to  build  a wall  along  this  bank  that  would  protect 
it  from  being  saturated  and  weakened  by  the  water  to  be 
placed  up  alongside  of  it. 

740  If  they  continue  the  work  tlie  way  they  have  been  doing  it 
at  the  site  of  the  dam,  it  would  not  do  any  good  at  all  in  the 
way  of  protecting  and  saving  the  bank. 

743  To  ])ave  the  tow-path  and  the  slope  over  into  the  canal 
would  have  to  add  5 feet  to  the  bank  on  the  canal  side. 

744  It  would  fill  up  5 feet  of  the  canal.  (Abst.,  pp.  354,  371.) 


48 


THE  EEEA'I'ION  OK  THE  NINE'I'Y-FOOT  SThIK  BEKM  BANK  AND  TOW-PATH  TO 
THE  ('ANAL  AND  THE  EKEECT  OF  THE  PROPOSED  FLO  WAGE  THEREON. 


SiimnKni/  of  Testimonij  of  Benezette  Williams. 

V.  OF 

TRANS. 

()o4  1 mil  ()o  years  old.  I am  an  engineer.  Have  i)ursned  that 

calling  35  years  and  railroad  work.  Am  employed  by  the  City 
of  (Chicago  as  Assistant  Sanitary  Engineer,  Superintendent 
of  Streets  and  City  Engineer.  Have  done  a great  deal  of  hy- 
draulic work  all  through  the  country.  Was  on  the  Chicago 

()35  Water  Supply  and  Drainage  Commission  from  1886  previous 
to  the  drafting  of  the  Sanitary  District  Law.  From  1892  to 
1895  1 was  Chief  Engineer  of  the  Sanitary  District.  Prev- 
iously 1 was  identified  with  the  Commisison  on  water  supply 
and  main  drainage.  The  greater  portion  of  my  work  has  been 
hydraulic  engineering.  I have  recently  inspected  the  work 

636  at  the  mouth  of  the  Des  Plaines  River.  A canal  for  commer- 
cial p'ur])oses  consists  of  the  channel,  the  embankment  and 
the  water  contained. 

The  proper  embankment  for  such  a work  as  that  ought  to 

637  be  12  to  15  feet  wide  at  the  top.  It  depends  on  the  way  it  is 
built  and  the  material  of  wdiich  it  is  built. 

On  the  outside  of  the  canal  it  ought  to  have  a slope  that  will 
stand  against  the  ordinary  wear  of  the  weather,  washing  of 
rains  and  floods.  In  a railroad  embankment  of  good  material 
II  to  1,  and  in  a canal  it  would  stand  at  the  same  slope  if  there 
was  no  leakage  to  wet  or  cause  it  to  slough. 

If  it  were  of  masonry  you  can  built  it  nearly  vertical.  This 

638  bank  was  probably  built  at  IJ  to  1 and  has  flattened  out  some 
by  wearing  down  and  depositing  near  the  foot.  It  appears 
now  to  be  about  Df  to  1.  The  tow-path  is  about  18  feet  above 
the  ground  level  on  the  outside  of  the  c^nal. 

639  They  have  changed  the  conditions  there  somewhat  by  exca- 
vation. There  was  a great  opening  or  coffer-dam  and  they 
have  dumped  material  all  around  there  which  changes  the 
original  condition.  It  might  be  about  20  feet  below  the  dam. 
There  they  have  widened  out  and  dumped  a great  deal  of  ma- 
terial. 

641  A bank  18  feet  high  and  12  feet  wide  at  the  top  would  need 
to  be  65  feet  wide  at  the  base.  If  it  were  made  5 feet  higher 
then  it  would  have  to  be  83  feet  wide. 

642  If  the  outside  bank  were  open  and  exposed  to  the  air  and 
then  flooded  with  water,  it  would  not  maintain  its  present 
slope.  It  would  wear  away  at  the  top  and  work  down  to  the 
bottom  and  flatten  out.  It  v/ould  be  injurious.  AVliether  it 
would  cause  a sliding  of  the  bank  more  than  what  comes  by 


4!) 


wave  aetioii,  would  (leiveiul  on  the  inat(‘i-ial.  ''the  eurrent  of 
the  river  and  the  wind  would  wear  away  at  the  wat(‘r  lev(‘l  and 
below  the  water  level  and  undermine' the  material  and  eanse 
it  to  slougli  down  on  the  side  of  tlie  bank.  It  would  need  a 
wave  berm.  Material  enough  must  be  |)nt  in  so  that  it  forms 
its  own  berm.  It  would  do  that.  Such  wash  will  take  y)lace 
if  it  is  material  that  will  wash  at  all. 

644  It  would  wash  the  material  and  break  in  on  the  bank  until 
it  did' form  a berm  there.  The  process  going  along,  as  I could 
make  out  from  the  indications  tiiere,  which  seem'  pretty  clear, 
is  that  they  take  the  material  as  it  comes  from  their  pit,  in- 
cluded in  their  coffer-dam,  and  take  the  rock,  the  blasted 
rock  which  seems  to  be  soft,  sandy  rock,  for  the  most  part, 
and  deposit  it  on  the  shoulder  of  the  present  bank  on  each  side 
at  the  top  of  the  new  deposit  of  the  rock  being  level  with  the 
top  of  the  original  bank,  that  is  the  canal  bank.  That  is 
widened  out  to  three  or  four  or  five  feet,  varying  somewhat 
according  to  whether  the  bank  is  true  or  not ; giving  it  a steep 
slope  untibit  disappears  in  the  slope  of  the  present  bank,  that 
is,  until  it  intersects  with  it,  that  slope  which  they  are  giving 
it  would  perhaps  be  one  to  one.  Then  that  forms  a widened 
bank,  perhaps  20  feet  wide.  On  that  they  build  up,  a]>parently 
intending  to  make  the  finished  bank  near  the  width  of  the  pres- 
ent canal  bank  on  top. 

Now  the  steeper  slope  being  made  of  this  to])  material,  re- 
sults in  a failure  for  any  matei'ial  to  reach  the  toe  of  the 
original  slope.  It  is  building  a baidv  on  top,  a bank  with  a 
less  slope  on  top  of  an  old  l)ank  with  a gi’eater  slo})e,  making 
a su])erincumbent  mass  thei'o. 

645  I don’t  think  it  can  endure  or  be  ])ermanent.  It  is  a soft 
rock.  It  is  dumped  in  promiscuously  just  as  it  comes  from 
the  excavation.  I think  it  will  disintegrate  by  the  weather. 
The  disintegration  will  be  rapid  for  rock.  They  are  throwing 
the  earth  into  the  Illinois  and  Michigan  Canal,  widening  on 
the  inside  from  the  edge  of  the  tow-path  into  the  canal  ])rism. 
They  are  giving  a greater  slope  to  it  than  the  original  slo})e  at 
the  present  time. 

646  The  direct  effect  of  what  they  are  doing  is  to  narrow  the 
prism  of  the  canal  and  in  order  to  make  the  tow-path  stand 
on  the  canal  side  it  is  necessary  to  widen  it  there  and  to  fill 
lip  the  canal  in  ])art,  if  they  follow  their  present  method.  * * * 

670  The  plans  of  the  company’s  work,  Mr.  Cooley  had  in  his 
possession  when  we  inspected  the  Avork.  They  did  not  show 
anything  as  to  wliat  the  company  ])ropose  to  do  with  the  bank 
or  how  it  ])r()])osed  to  widen  the  tow-path.  Part  of  the  work 
seemed  to  be  about  completed;  other  parts  not.  It  was  evi- 
dent they  were  raising  the  tow-jiath.  They  were  raising  it 
about  5 or  6 feet  above  the  water  in  the  canal 


50 


()71  1 judged  that  I'roiii  the  top  of  tlie  hard<  where  some  raising 

had  been  don(‘  and  by  the  height  of  the  top  of  tlie  grade 
stakes  where  tlie  raising  had  not  })een  done. 

The  original  haidv  in  j)la('es  was  ri})rapped  })art  of  tlie  wiiy 
Vvith  small  stone  oiitsiile  the  eanal,  hut  it  lias  been  obliter- 
ated and  ('overed  with  earth.  Jt  has  an  earth  slope  now. 

(572  ddiere  were  places  where  the  stone  was  visible,  but  for  the 
most  ])art  not.  There  were  jihu'es  that  it  was  covered  with 
stone  where  the  current  sets  in  against  it,  to  prevent  wash. 
They  were  not  dimension  stones.  I examined  the  bank  for  a 
mile.  There  was  about  one-quarter  of  a mile  that  was  cov- 
ered up  by  the  material  that  had  lieen  deposited  there.  The 
original  construction  showed  in 'that  (piarter  of  a mile  for  the 
lower  half  of  the  slope.  I saw  the  original  material  above 
(u])-streani)  where  the  new  material  was  deposited.  The  new 
material  bad  been  deposited  upon  the  side  and  top  of  the 
bank  for  a quarter  of  a mile.  Then  another  stretch  for  a 
number  of  hundred  feet  it  had  been  deposited  upon  the  side 
of  the  slope  and  the  top  had  been,  evened  out  to  about  the 
original  tow-path  level.  There  w^ere  trees  growing  up  down 
the  bank  in  various  places. 

G74  There  were  more  or  less  of  that  original  paving  in  be- 
tween the  points  and  ‘‘Y”  on  the  Hillebrand  exhibit. 

The  upper  part  of  the  bank  was  covered  with  fresh  material. 

(175  but  at  the  bottom  of  the  bank  the  old  bank  showed.  There 
was  a good  deal  of  the  bank  that  was  not  protected  at  all. 

C)77  You  cannot  lower  flood  waters  by  building  a dam.  Any- 
thing you  do  with  a dam  vriW  raise  them.  The  water  in 
that  pool  would  not  be  still  water.  The  bank  would  be  de- 
stroyed with  the  effect  of  wave  action  and  winds  and  being- 
kept  constantly  saturated.  The  action  of  the  wmter  from 
this  dam  would  be  much  more  serious  than  the  action  of  the 

(578  high  wmter.  If  you  get  enough  material  there  of  the  right 
kind  and  i)ut  it  on  that  slope,  you  could  protect  it. 

(185  Trees  could  not  have  grown  on  that  bank  as  they  did  if 
it  had  been  laid  up  of  stone.  The  new  stone  laid  in  there 
was  the  spoil  of  the  excavation,  the  outer  line  thrown  with 
some  regularity,  Imt  they  are  not  hand-laid. 

()8()  In  order  to  construct  that  bank  so  as  to  protect  the  canal 
and  let  the  water  in  it  would  be  necessary  either  to  use  a 
heavy  riprap  extending  dowm  to  the  toe  of  the  bank  and 
building  up  and  ])aving  like  the  pavement  of  a reservoir, 

G87  carefully  hand-laid  different  from  anything  that  was  there. 
It  would  be  picked  rubble  stone  or  dimension  stone. 

The  water  held  back  by  the  dam  wall  reach  and  wash  the 
new  work  that  extends  down  the  slo])e.  (Al)st.,  ])p.  33(1-354.) 


51 


THE  RELATION  OE  THE  DO-FOOT  BERM  BANK  AND  TOVV-I’A'P  1 1 TO  THE 

CAN  AT.,  AND  THE  T^IEEECT  OE  THE  1 MU)  POSED  Fr.OWA(;E  THEfiEON. 


SumDiarij  of  T estim any  of  Lyman  E.  Cooley. 

2521  If  the  tow-])ntli  hank  is  raised  two  feet  or  more  above  its 
lieiglit,  and  the  dam  placed  across  the  Des  Plaines  river,  in 
accordance  with  the  plans  that  have  been  submitted,  and  at 
such  a height  as  indicated  upon  the  plans,  and  the  dam  is 
maintained  at  that  height,  the  effect  will  be  to  depreciate  the 

2522  value  of  the  bank,  and  in  the  course  of  time  it  will  be  de- 

2523  stroyed.  The  maintenance  of  a level  of  water  against  an  off 
side  of  the  bank  is  a radical  change  in  conditions  so  far  as 
affects  the  stability  of  the  bank  and  the  effect  will  be  to  de- 
grade the  bank  eventually  until  it  disappears  or  is  greatly 
reduced : . That  would  be  the  inherent  and  necessary  effect  of 

2524  a situation  of  that  character.  I do  not  undertake  to  say  that 
it  is  humanly  impossible  to  build  a bank  which  would  be 
safe,  but  that  the  present  bank  with  such  amendments  thereto 
as  I have  seen  indicated  on  the  ground  and  in  the  plans  would 
be  subject  to  criticism.  The  bank  of  the  canal  above  the 
proposed  site  or  above  the  actual  site  which  is  being  de- 
veloped, was  in  process  of  change  for  a couple  of  thousand 
feet  or  more,  and  it  had  been  staked  out,  for  nearly  a mile 
upstream,  and  had  the  appearance  of  being  a completed  work 
for  about  1,000  feet  up-stream.  The  bank  yms  ])eing 
raised,  I judge,  about  two  feet.  It  was  widened  on  the 

2525  canal  side  about  five  feet.  It  extended  into  the  ])rism  of  the 
canal  about  five  feet  by  a riprap  dump.  That  is  an  expres- 
sion used  for  loose  rock  dumped  loosely  in  water  construc- 
tion for  shore  ])i*otection.  I{i])rap  usually  designates  rocks 
that  are  loosely  dumped  or  placed,  and  a similar  riprap  on 
the  face  of  the  slojie,  on  the  outer  slo])e  of  the  canal,  and 
between  this  was  placed  earth,  that  I judged  to  be  in  ])art 
taken  from  the  excavation.  That  is  the  spoil  bank  of  the  ex- 
cavation. This  ripra])  slope  was  as  steep  as  the  rock  would 

* stand  at  the  duni}),  and  the  filling  in  between  seemed  to  be 
placed  without  care  and  without  any  reference  to  forming  a 
proper  bond  between  the  original  surface  and  the  new  ma- 
terial, and  w^as  not  in  accoielance  with  what  T should  call 

2526  good  practice.  The  area  of  the  canal  itself  was  narrowed  by 
five  feet.  It  is  a saturated  bank,  or  it  would  become  a sat- 
urated bank,  which  requires — which  greatly  diminishes  the 
stability  of  the  earthen  material,  and  which  tends  to  degrade 
it  to  a flatter  slope.  A flatter  slo|)e  is  recpiired  for  stal)ility, 
and  at  the  wave  line  or  the  line  of  fluctuation  between  high 
and  low  water  there  are  wave  forces  coming  from  a very  ex- 
tended pond  or  lake,  which  are  a constant  source  of  degrada- 


52 


lion.  There  are  i('e  floes  wliieli  sometimes  shove  a bank  of 
that  kind  very  severely  in  tlie  formation  of  ice  in  a pool,  and 
there  are  de])redations  committed  by  vermin,  such  as  craw- 
fish and  muskrats,  which  have  caused  the  failure  of  more 
earthen  dams  in  northern  climates  and  more  levees  in  south- 
eiTi  climates  than  all  other  causes  i)ut  together.  It  is  not 
])racticable  to  maintain  this  dam  and  maintain  the  canal  in 
its  integrity  at  this  point  and  keep  the  canal  in  place  where 
it  is  without  most  extraordinary  works. 

2527  With  this  pool  placed  underneath  the  bottom  of 
the  canal,  what  wmuld  be  tlie  effect  on  the  canal  ! 

A.  Taking  the  view  of  it  that  we  did  when  we  ^banned 
tlie  Sanitary  District  Canal,  we  thought  it  desirable  to 
put  the  canal  up  the  river,  as  far  away  as  practicable, 
and  so  we  shoved  it  over  clear  to  the  opposite  of  the 
valley.” 

But  the  nearest  point  is  between  two  and  three  hundred 
feet,  where  we  were  forced  by  necessity  to  bring  it,  and  at 
other  points  we  kept  it  at  a minimum  of  800  feet,  where  we 
had  the  space  to  do  so. 

That  was  to  avoid  percolation  and  saturation  of  ground 
which  would  produce  a slip  towards  the  work,  and  to  insure 
better  security. 

We  thought  it  wms  the  wisest  precaution. 

2528  It  is  not  practicable  to  take  the  canal  and  shove  it  over 
at  this  place  on  the  side  hill.  The  Dresden  Bluffs  are  80  to 
100  feet  above  the  level. 

Q.  How  wide  an  earthen  bank  would  reasonable  precau- 
tion call  for  between  two  such  bodies  of  water  at  these  two 
levels! 

A.  I would  not  like  to  make  a specification  without  pretty 
carefully  considering  the  soil  conditions,  from  Channahon 
down  to  the  site  of  the 'dam.  I think  I would  approve  possi- 
bly of  the  specification  which  the  company  has  already  made 
in  regard  to  the  short  piece  of  dam  between  the  power  sta- 
tion and  the  tow-path  bank  with  the  top  of  it  doubled  or  , 
tripled  in  width,  provided  that  in  place  of  fiat  pavements 
as  they  have  put  in  there,  that  they  put  in  genuine  pavement 
such  as  is  used  on  the  dikes  of  the  Hudson  river  and  on  the 
Erie  Canal,  15  to  20  inches  in  depth,  stood  on  edge  at  the 
chafing  line  of  the  waves,  and  the  ice.  That  specification 
called  for  a front  slope  of  two  and  a half  feet  to  one  and  for 
a back  slope  of  three  and  four  to  one,  as  the  company  have 

2529  drawn  it  for  their  own  embankment.  I referred  to  a bank 
that  is  mentioned  in  the  specification  and  plans  of  the  com- 
pany connecting  the  site  of  the  power  station  with  the  tow- 
path  and  175  feet  long,  of  which  a specification  is  given  as 
shown  on  the  plan.  That  is  down  at  the  points  of  the  junc- 


tioii  of  ilie  (lam  a('r()ss  the  strcwun  with  Uk^  l()w-[)alli  where 
there  is  a peninsula  of  gTound  some  400  feet  wide  between 
the  tow-path  and  the  river.  In  looking  ov(n'  the  plans  it  o(‘- 
enrred  to  me  that  that  was  the  judgment  of  the  engineer  who 
made  those  plans,  as  to  what  kind  of  a hank  should  he  built. 
If  it  was  proposed  to  double  the  width  on  top  as  there  given 
with  the  same  slope  and  the  same  treatment  as  called  for  by 
this  specification — I do  not  at  the  moment  think  that  that 
bank  could  be  completed  on  the  present  right  of  way  of  the 
canal  without  shifting  the  canal  over  onto  the  bluffs. 

2530  That  is  practicable  to  a limited  extent  only,  on  account  of 
the  height  of  the  bluff.  You  may  shift  it  for  perhaps  10  or 
15  feet  without  encountering  great  difficulty.  * * * 

2648  (After  examining  the  contract).  Exhibit  A,  it  is  not  prac- 
ticable to  do  the  things  required  to  be  done  by  the  party  of 
the  second  part  under  that  contract  for  less  than  $100,000. 
2650  It  is  not  practicable  to  do  the  things  required  by  clauses 
6 and  9 in  such  a manner  as  will  not  interfere  with  navigation 
on  the  Illinois  and  Michigan  Canal  nor  in  such  manner  as  not 
to  interfere  with  the  use  of  the  tow-path  in  connection  with 
the  canal  (iVhst.,  pp.  846-878.) 

Mr.  Cooley  testified  (Al)st.,  pp.  841,  846-848)  that  the  defend- 
ant’s plans  and  specifications  contained  no  provision  for  any  em- 
bankment or  work  on  the  embankment  between  the  tow-path  and 
the  river. 

Defendant’s  engineer.  Mead,  identifies  his  plans.  Exhibit  F, 
as  the  plans  of  the  embankment  that  he  made,  and  states  that  he 
made  no  plans  for  riprapping  the  bank  of  the  tow-path  of  the 
canal.  (Trans.,  p.  3889;  Abst.,  p.  1150.) 

The  specification  for  an  embankment  to  which  Mr.  Cooley  so  re- 
ferred is  Specification  E (Abst.,  p.  1204)  of  defendant’s 
dam,  and  the  detail  i)lan  G1556,  which  it  makes  a 
part  thereof.  G1556  shows  as  [)art  of  the  dam,  an  earthen 
embankment,  175  feet  long,  extending  crosswise  of  the 
river,  from  the  right-hand  end  of  the  power-house  to  the 
tow-path  of  the  canal.  It  is  shown  to  l)e  113  feet  wide  at  the  base, 
16  feet  high  from  the  natural  surface  of  the  ground,  to  the  road- 
way at  the  surface;  on  the  up-stream  side  of  the  pool  in  the  river 
it  has  a slo])e  of  two  and  one-half  to  one  inch,  ‘‘])aved  with  lime- 
stone 4 inches  thick  and  of  such  surface  dimensions  as  will  admit 
of  laying  securely  and  evenly  in  the  work,  and  after  ])eing  laid 
tamped  with  a wooden  tamper  until  brought  to  a solid  bearing  in 


54 


ilie  oiiihankiiUMil.”  SpCM'ific'atioii  K.  Sec.  (>,  Clause  (1)).  On  the 
(lowii-streani  side,  away  from  the  ])()()1,  it  has  a slope  of  four  to 
one  siniilai'ly  paved  the  rest  of  the  way  down. 

Asked  how  wide  an  earthen  einl)ankinent  would  reasonahle  pre- 
(‘aiition  call  for  i)etween  two  such  bodies  of  water  at  these  two 
levels,  he  said: 

“ 1 think  I would  ai)prove  possible  of  the  specification  which 
the  conii)any  has  already  made  in  regard  to  the  short  piece  of 
dam  between  the  power  station  and  the  tow-j)ath  ])ank,  with 
the  toj)  of  it  doubled  or  tripled  in  width,  provided  that  in  . 
place  of  flat  pavements,  as  they  have  put  in  there,  that  they 
l)ut  in  genuine  pavement  such  as  is  used  on  the  dikes  of  the 
Hudson  Kiver  and  on  the  Erie  Canal,  15  to  20  inches  in  depth, 
stood  on  edge  at  the  chafing  line  of  the  waves  and  the  ice. 

“That  the  specification  calls  for  a front  slope  of  two  and  a 
half  feet  to  one  and  for  a back  slope  of  three  and  four  to  one, 
as  the  company  have  drawn  it  for  their  own  embankment.” 

The  plan  as  drawn  (G1556  in  the  section  marked  BB)  shows 
this  embankment  with  its  slopes  and  its  paving  laid  flat  (appar- 
ently about  6 inches  thick),  just  as  described  by  Mr.  Cooley.  It 
shows  the  embankment’s  top  16  feet  wide;  while  Mr.  Cooley  de- 
sired an  embankment  just  double  this  width  at  the  top,  and  with 
the  same  slope,  which  would  give  a corresponding  increase  of 
width  below.  (Abst.,  p.  848.) 

This  work,  he  said,  wmuld  cost  over  $100,000.00.  It  will  be  re- 
membered that  Griswold  testified  (Abst.,  p.  852)  that  when  he  took 
the  contracts  he  would  hardly  be  good  for  a $75,000  contract — cer- 
tainly not  for  a $100,000  contract ; and  that  he  never  saw  the  place 
or  property  or  any  of  the  Canal  Commissioners,  and  never  had 
any  intention  of  building  any  dam  or  carrying  out  the  require- 
ments of  the  contract. 

The  defendant  attempted  to  meet  this  by  the  evidence  of  va- 
rious engineers,  who  testified  that  in  their  opinion  the  2:)resent 
bank  would  be  strong  enough  if  riprai>ped  and  that  it  could  be  ri23- 
rap])ed  for  $50,000  or  thereabouts. 

(See  Mheeler,  Abst.,  p.  1249.) 

(See  Mead,  Abst.,  }).  1140.) 

(See  Moore,  Abst.,  ^3.  1008.) 

This  allowed  nothing  for  thickening  the  bank. 


Some  of  the  (leroiulaiii’s  witnesses  said  lli(*y  had  ^atcis  (moii^li 
in  the  dams  so  they  (*onld  let  all  the  Hood  watcn-  run  away. 

This  is  over(‘ome  by  the  testiniony  that  o('easional ly  th(‘  i-iv(n* 
in  high  water  overHows  this  bank  into  the  canal,  though  tlnna*  is 
no  dam  there  at  all. 

Test,  of  Sackett  (Abst.,  ]).  225). 

Test,  of  McDonald  (Abst.,  ]).  291). 

Again,  some  of  the  witnesses  advanced  the  ridiculous  sugges- 
tion that  the  water-power  pool  on  the  side  of  the  l)ank  would  sup- 
port it — would  relieve  it  of  the  strain  caused  by  the  canal  water, 
would  protect  it  against  vermin^  such  as  muskrats  and  crawfish. 

(Sackett,  Abst.,  ]).  249.) 

(Mead,  Abst.,  p.  1141.) 

(McDonald,  Abst.,  p.  291.) 

(Wheeler,  Abst.,  pp.  1245-1246.) 

This  bit  of  disingenuous  theorizing  condemns  their  testimony 
on  the  whole  subject  of  the  strength  of  the  bank. 

The  canal,  forty  feet  wide  at  the  base  and  four  and  one-half  feet 
deep,  does,  of  course,  have  the  lateral  pressure  on  the  bank,  which 
such  a body  of  water  will  make.  But  it  is  in  no  need  of  such  ^‘su]> 
])ort”  or  ‘‘relief.”  Per  contra,  the  water-]mwer  ])ool,  over  1,000 
feet  wide  and  twenty  feet  deej),  will  put  a counter  })ressure  on  the 
other  side  that  will  not  merely  “relieve”  and  “support”  the  bank, 
but  press  it  to  the  bursting  ])oint  in  high  water. 

And  the  vermin,  muskrats  and  crawfish,  live  under  and  substan- 
tially at  the  edge  of  the  water  and  would  never  touch  the  bank  on 
the  river  side  at  a point  16  feet  above  the  water;  but  when  the 
water-power  i)ool  is  put  in  and  the  water  raised  on  the  river  side 
to  the  canal  level,  the  line  of  the  top  of  the  water  on  the  river  side 
(being  that  of  the  bottom  of  the  canal  on  the  other)  will  make  the 
32  feet  of  earthen  bank  between  them  a muskrat,  wai'reu  and  craw- 
fish bed.  The  saturation,  slipping  and  breaking  of  the  bank  and 
undermining  of  the  canal  will  soon  be  complete. 

The  defendant  replies:  The  work  must  be  done  “to  the  satis- 
faction of  the  (kinal  Commissioners;”  and  they  had  Kehoe  look- 


5(1 


iiig-  on  and  inspoeling'  until  lie  died.  Ergo,  the  State  has  no  reni- 
edy. 

And  the  trial,  court  held  that  the  Canal  (.'oinniissioners  iniglit 
compel  the  defendant  “to  take  down  its  works if  necessar3\ 

J)Ut  such  a (‘ontract  l)y  the  Canal  Coinmisisoners  is  inherently 
dangerous,  is  for  use  of  canal  property  antagonistic  to  the  uses 
of  tlie  canal,  and  is  he^mnd  tlie  power  of  the  Canal  Commissioners, 
and  void.  And  especially  this  is  so  when  the  contract  is  in  the 
teeth  of  the  statute  in  other  particulars. 

The  fact  that  this  is  an  artificial  bank  and  an  exposed  portion 
of  the  Canal  is  sliowm  by  the  following: 

“From  the  Du  Page  to  Dresden  the  line  has  been  but 
slightly  changed  since  the  first  survey,  but  the  quantity  of 
slope  wall  to  protect  the  Canal  at  the  Kankakee  bluffs  has 
been  considerably  increased  to  render  the  Canal  doubly  se- 
cure at  the  exposed  point.  (Engineer  Gooding,  December  10, 
1888 — Canal  Report,  1900,  p.  156.) 

Again,  in  his  report  for  1836  Mr.  Gooding  said:  (Canal  Report, 
1900,  p.  124.) 

“About  two  miles  below  the  crossing  of  the  Du  Page  a very 
difficult  and  expensive  portion  of  the  line  commences  and  ex- 
tends nearly  to  Dresden,  below  the  mouth  of  the  Kankakee 
River.  The  bluffs^  which  are  from  100  to  150  feet  in'  height, 
approach  the  river  so  as  to  be  washed  by  it  at  their  base,  and 
the  toiving  path  hank  which  ivill  he  partly  or  wholly  huilt  in  the 
river  at  the  base  of  the  bluffs  will  require  slope  wall  to  protect 
it  against  ahraslon  from  the  flood  waters  of  the  river,  for  an 
aggregate  distance  of  2 miles  and  50  chains. 

^‘The  most  expensive  portion  of  this  difficult  section  com- 
mences a short  distance  above  the  mouth  of  the  Kankakee 
River  and  continues  to  the  termination  of  the  bluffs.  The 
base  of  the  towing  path  will  he  wholly  in  the  river,  and  the 
embankment  must  he  formed  by  earth  taken  either  from  the 
top  of  the  bluff  or  from  the  opposite  side  of  the  bluff, 
for  the  excavation  of  any  portion  of  the  prism  of  canal  in  the 
bluff  u'oidd  increase  its  tendency  to  slip  and  consequently  en- 
danger the  canal. 

Heavy  protection  tv  all  will  be  here  required  to  resist  the 
force  of  the  ice  floods  of  the  Kankakee,  but  it  is  believed  that 
the  estimate  of  cost  presented  is  sufficient  to  construct  a canal 
as  permanent  as  it  can  well  be  made  along  clay  bluffs  which 
seem  so  much  inclined  to  slip. 

“Another  mode  of  passing  the  bluffs  may  be  worthy  of  ex 


57 


amiiicition  bofore  a final  loc'ation  is  made  of*  ibis  [)aa*i  of*  llio, 
lines  between  Drescien  and  Mar\seilles. 

“A  dam  may  be  built  at  the  foot  of  the  bluffs  and  a towirif^ 
path  eonstrueted  along  their  base  so  as  to  pass  this  difficull 
})ortion  of  the  line  by  slack  water  at  much  less  ex|)ense  than 
the  })resent  estimate  of  an  indei)endent  canal,  and  would  un- 
doubtedly be  quite  as  secure  an  improvement.  By  raising  the 
water  15  feet  (and  a dam  of  this  height  can  be  rendered  per- 
fectly secure,  for  there  is  a good  rock  foundation),  the  line 
would  be  thrown  ten  and  one-half  feet  lower  than  the  survey 
made  to  Lock  No.  8,  of  eight  feet  lift,  between  the  Aux  Sable 
River  and  Nettle  Creek,  and  two  and  one-half  feet  lower  than 
the  line  surveyed  from  this  lock  to  Locks  Nos.  9 and  10,  a short 
distance  above  Marseilles.  This  would  involve  the  necessity 
of  a change  in  the  plan  of  crossing  the  Aux  Sable,  an  aque- 
duct having  been  estimated  and  a dam  being  required,  if  the 
plan  suggested  hereafter  be  adopted,  and  the  river  would  be 
crossed  considerably  further  down.” 


STATUTES  ON  90-FOOT  STRIP. 

As  already  shown  in  the  statement  of  facts  under  the  heading 
‘‘The  Ninety-Foot  Strip”  (supra) , the  Act  of  January  9,  1836, 
by  Section  16,  reserved  a strip  of  land  ninety  feet  wide  on  each 
side  of  the  canal  to  enlarge  its  capacity.  (Compln.  of  Canal 
Laws,  pp.  30-32.) 

In  1846-7  when  the  canal  was  being  laid  out  and  constructed,  the 
Canal  Trustees  caused  a strip  ninety  feet  wide  on  each  side  of  the 
canal  to  be  laid  out,  surveyed  and  marked  otf  as  a reserve  strip 
from  one  end  of  the  canal  to  the  other.  (Report  of  Canal  Commis- 
sioners for  1900,  Abst.,  p.  1855;  Fv.  of  Orr,  Abst.,  p.  386.) 

The  Act  of  March  7,  1872,  in  Sec.  5,  expressly  provided  as  fol- 
lows : 

“Provided,  however,  that  uo  part  of  the  ninety-foot  strip 
along  the  canal  or  any  part  of  the  real  estate  in  the  City  of 
Chicago  shall  be  sold.”  (Canal  Compln.,  pp.  152-3.) 

The  Act  of  March  27,  1874  (R.  S.,  Chap.  19,  Sec.  8,  Clause  8) 
authorized  the  sale  of  canal  lands  “other  than  those  connected 
with  tlie  water-})ower  upon  the  said  canal  and  the  ninety-foot  strip 
along  the  canal.  * * (Canal  Compln.,  p.  159.) 

The  amendatory  Act  of  June  19,  1891,  took  away  the  i)ower  of 
»ale  of  lands  altogether.  (Canal  Laws,  pp.  171-2.) 


58 


The  aiiieiKhitoi y Act  of  April  21,  181)!),  restored  the  provisions 
ol  tlie  a(*t  ot  1874,  authorizing  sale  but  ex(*luding  tlie  ninety-foot 
strip  therefi-oui  ((4inal  Laws,  pp.  173-5),  and  this  was  the  act  in 
foix'e  at  the  time  of  the  transaction  in  (juestion. 

In  1872  the  legislature,  by  joint  resolution,  declared  the  lease 
of  30,000  feet  of  the  90-foot  stri])  to  Adam  Smith,  not  valid,  and 
01‘dered  the  Attorney  General  and  Canal  Trustees  to  take  the  nec- 
essary ])roceedings  to  disaffirm  the  lease  and  protect  the  rights 
of  the  State  (Canal  Complm,  p]).  150-151.) 

THE  90-foot  strip  IS  AN  INTEGRAL  PART  OF  THE  CANAL. 

‘‘The  Board  of  Pulilic  Works  ])ossess  no  y)ower  to  grant 
rights,  easements  or  privileges  for  private  advantages  unless 
expressly  authorized  by  law.” 

Ghio  ex  rel.  Aitoiiiey  General  v.  Chi.  Cent.  B.  Co.,  37 
Ohio  St.,  157. 

“The  berm  bank  of  the  canal  is  part  thereof,  and  equally 
l)rotected  by  law  from  all  occupancy  or  intrusion  as  any  othei* 
l)art.” 

Ihid. 

The  foot  path  or  tow-path  and  strip  of  land  occupied  by  it  along 
a canal  is  part  of  the  canal. 

Alexander  v.  Tolleston  Club,  110  111.,  65. 

Moran  v.  Bass,  14  Fed.,  454. 

Hatch  V.  C.  S 1.  R.  Co.,  18  Ohio  St.,  92. 

Edwards  v.  Schlund,  21  Ohio  St.,  193. 

Schuylkill  Navigation  Co.  v.  Berks  Co.  Comrs.,  11  Pa.  (1 
Jones),  202. 

Mtdlen  v.  Lake  Drummond  Canal  & Water  Co.,  63  L.  K. 
A.,  883. 

In  Alexander  v.  'holiest on  Club,  110  111.,  65,  the  Court  said 
(speaking  of  a lease  of  a canal  to  connect  the  club  house  with  the 
lake) : 

“The  canal  and  this  foot  path  were  the  only  practicable 
means  of  access  from  the  river  and  marsh  to  the  club  house 
back  of  them.  Wherever  there  is  the  right  of  navigation  there 
is  the  incidental  right  to  use  the  banks  of  the  stream,  to  a 


greater  or  less  extent,  as  tlie  purposes  of  navigation  may  r(;- 
(piii-e.  The  lease  is,  in  terms,  ‘all  ilie  ground  in  Scudion  18  now 
used  for  said  canal.’  We  think  this  may  not  iini-(iasonahly  lx; 
held  as  iiududing  all  the  groimd  then  used,  together  with  the 
canal,  or  in  connection  with  the  canal.  This  foot  path,  we 
may  infer  from  the  evidence,  was  as  much  used  in  connection 
with  the  use  of  tlie  canal  as  the  canal  itself  was  used.  It  had 
ever  been  so  used  before,  and  was  so  used  at  the  time  of  the 
making  of  the  lease,  and  has  been  ever  since,  until  in  188], 
with  certainly  the  knowledge  and  consent,  and  without  objec- 
tion, of  the  lessors.  , 

“It  is  the  rule  that  whenever  a thing  is  granted,  all  and 
every  easements  necessary  to  its  beneficial  enjoyment  will 
pass. 

“ (Angell  on  Watercourses,  Secs.  158,  358.)  Although  this 
foot  path  was  not  absolutely  necessary  for  the  use  of  this 
canal,  as  is  the  tow-path  in  the  case  of  an  ordinary  canal 
where  the  mode  of  propelling  boats  is  by  animal  power,  still 
its  use  was  an  actual,  constant  incident  of  the  canal’s  use — 
such  a convenience  therein,  and  accessory,  and  so  far  neces- 
sary, that  its  use  may,  not  improperly,  we  think,  be  regarded 
as  appurtenant  to  the  canal,  and  passing  by  the  lease  thereof.” 

Morgan  v.  Bass,  II  F.  K.,  I5I,  was  an  action  of  ejectment 
brought  for  a strip  of  land  about  17  feet  wide,  more  or  less,  lying 
on  the  canal  basis,  and  cliumed  to  be  the  northern  part  of  Lots  5()2 
and  503  of  Hanna’s  Addition  to  Fort  Wayne.*  * * On  the  ])lat  which 
Hanna  made,  and  which  was  recorded,  the  depth  of  these  lots 
north  and  south  was  marked  as  163  feet,  but  the  lines  of  the  lots 
extended  to  the  canal  basis,  and  as  the  Court  thought,  and  so  in- 
structed the  jury,  they  were  intended  by  Hanna  to  extend  to  the 
canal,  and  therefore  the  northern  boundary  of  these  lots  was  on 
the  line  of  the  canal,  whether  it  was  more  or  less  than  163  feet 
north  of  Pearl  street.  The  court  did  not  instruct  the  jury  that 
this  north  line  was  necessarily  the  water  line  of  the  l)asin,  but 
laid  down  some  rules  to  govern  the  jury  as  to  the  quantity  of  land 
that  was  covered  by  the  canal,  stating  that  it  included  the  bottom, 
sides,  and  the  tow-])ath,  and  any  portion  of  the  adjoining  banks 
that  were  appropriated  by  the  Canal  Commisisoners  and  used  for 
the  purposes  of  the  canal,  stating  at  the  same  time  that  as  the 
canal  was  intended  as  a means  of  communication  by  water,  it  must 
be  assumed  that  certain  portions  of  its  banks  were  to  be  used  foi* 
the  purposes  of  commerce,  and  for  receiving  and  delivering  freight 


along-  the  line  of  tlie  canal;  and  the  court  also  stated  that  there 
was  nothing  in  the  evidence  to  indicate  liow  far  from  the  water 
line  on  the  banks  of  the  canal  the  right  of  the  Commissioners  or 
ownei-s  of  the  canal  extended,  and  that  in  those  cases  where  no 
f)ortion  of  the  banks  of  the  canal  had  been  appropriated  for  the 
uses  of  the  canal,  it  must  be  assumed  that  the  owners  of  adjoining 
lots  abutting  on  the  canal  would  own  their  property  to  the  canal, 
subject,  of  course,  to  the  uses  of  the  canal,  as  heretofore  stated. 

In  Hatch  V.  C.  & 1.  R.  R.  Co.,  IS  Ohio  St.,  92,  the  question  here 
waived  was  whether,  under  the  twelfth  section  of  the  Act  of  May 
1,  1852,  of  Ohio,  to  provide  for  the  creation  and  regulation  of  in- 
corporated comjDanies,  etc.  (3  Curwen’s  L.,  1860)  a railroad  com- 
pany may,  in  the  exercise  of  the  delegated  powers  of  eminent  do- 
main, appropriate  to  its  use,  for  the  purposes  of  a railroad,  the 
land  constituting  the  body  of  a canal  acquired  by  the  exercise  of 
like  delegated  power,  by  a canal  company,  for  the  purposes  of  such 
canal,  against  the  consent  of  the  latter.  It  was  held,  that  an  ap- 
propriation of  land  by  a canal  company  for  the  purpose  of  a canal, 
in  the  absence  of  any  contract  or  statute  to  the  contrary,  will  be 
presumed  to  have  included  land  for  a berme-bank  as  well  as  for  a 
tow-path;  and  the  exclusive  power  of  the  company  over  the  land 
necessary  for  such  bank  is  the  same,  whether  it  consists  of  a nat- 
ural or  artificial  deposit  of  earth. 

The  lower  court,  in  instructing  the  jury  on  this  point,  used  the 
following  language : 

“Secondly,  the  plaintiff  claims  that  the  railroad  company 
have  taken  and  used  not  only  the  land  which  had  been  be- 
fore appropriated  and  used  by  the  canal  company,  but  also  a 
strip  of  his  other  land  adjacent  thereto,  which  the  defendant 
denies.  In  order  to  ascertain  whether  such  additional  strip 
of  land  has  been  taken  or  not,  it  will  be  necessary  for  you  t6 
ascertain  from  the  evidence  what  were  the  dimensions  of  the 
canal. 

“The  charter  of  the  canal  company  authorizes  them  Ao  lo- 
cate and  construct,  upon  the  general  plan  and  dimensions  of 
the  Miami  Canal,  a navigable  canal,  with  all  the  necessary 
locks,  towing  paths,  basins,  aqueducts,  culverts,  waterweirs, 
dams,  wharves,  embankments,  toll  houses,  and  all  other  neces- 
sary appendages.’  And  the  railroad  company  have  offered 
evidence  tending  to  prove  what  the  dimensions  of  the  Miami 
Canal  were— that  it  included,  among  other  things,  a berm 


fil 


hank,  having  a slope  IVoin  the  water’s  (‘dge,  the  hoi-izontal 
width  of  whieli  was  three  and  a halt  te(d,,  and  that  troin  the 
top  of  said  slope  the  henn  haidc  extended  an  additional  width 
of  six  feet  ordinarily.  The  plaintiff,  on  the  other  hand,  elainis 
lie  has  shown  hy  evidence  that  the  canal  at  this  [ilace  was 
located  along  the  base  of  a hill,  with  herm  hank  next  to  the* 
hill;  that,  in  consequence  thereof,  no  henn  liank  was  needed, 
and  that  no  land  was  in  fact  appropriated  or  used  therefor; 
hut,  on  the  contrary,  that  it  was  agreed  between  the  plaintiff 
and  the  canal  company  that  the  land  should  only  be  ajipro- 
priated  to  the  water’s  edge  on  the  side  opposite  the  towing 
path.  I charge  you,  however,  that  a berm  bank  wms  needed 
for  the  uses  of  a canal,  and  the  necessity  for  if  was  not  dis- 
pensed with  in  consequence  of  the  location  of  the  canal  at  the 
base  of  a hill ; that  it  answered  the  same  purpose  there  as  else- 
where— namely,  to  support  the  water — and  could  also  be  em- 
ployed for  other  incidental  purposes,  as  at  other  places.  It 
was  therefore  the  duty  of  the  canal  company  to  appropriate 
or  otherwise  acquire  land  for  a berm  bank  through  the  prop- 
erty of  the  plaintiff,  of  the  dimensions  of  the  berm  bank  of 
the  Miami  Canal ; and  the  canal  company  must  be  presumed  to 
have  done  its  duty  in  that  respect.” 

This  instruction  was  assigned  for  error  by  the  railroad  com- 
pany, but  the  Supreme  Court  of  Ohio,  through  Brinkerhoff,  J., 
says : 

^Mn  what  was  said  by  the  court  below  iu  its  charge  to  the 
jury,  in  respect  to  the  berm  bank  of  the  canal,  we  see  no  error. 
A berm  bank  for  the  canal  was  necessary  for  the  uses  of  a 
canal ; and  whether  it  consisted  of  a natural  or  artificial  de- 
posit of  earth  can  make  no  difference.  It  must  have  formed 
a part  of  the  original  appro])riation  l)y  the  canal,  unless  there 
were  a si)ecial  agreement  to  the  contrary,  and  its  dominion 
over  it  was,  in  law,  exclusive.” 

In  Edwards  v.  Schlund,  21  Ohio  C.  C.,  193,  the  court  said: 

^‘This  l)ank  is  held  to  be  state  land,  on  the  theory  that  the 
State  took  actual  possession  of  so  much  of  the  land  as  is  nec- 
essary to  form  the  bed  and  banks  of  the  canal  and  tow  path, 
and  the  banks  necessary  to  hold  the  tow  path  and  keep  it  in 
position.” 

In  Schuylhill  Naviyation  Co.  v.  Berks  County  Conimisisoners,  11 
Pa.  (1  Jones),  202,  the  court  said  : 

C^An  incor])orated  canal  includes  as  constituent  ])arts,  the 
bed,  berm 'banks,  tow-])r(ths  and  tool  houses  and  collector’s  of- 
fices, and  if  the  (‘anal  is  not  subject  to  taxation,  the  ])ro])erty 
forming  such  constituent  parts  are  not  taxable.” 


Fn  Western  Pa.  II.  Co.  v.  Childs,  F^ittsl)iirgli  \i.,  11 G; 

“Tlio  vorukies  of  public  works  of  i^ermsylvania,  and  those 
(‘lainiing-  under  tliein,  liave  a title  in  fee  simple  to  all  the  land 
occaipied  by  the  canal,  including  tliat  covered  by  tlie  slopes  and 
embankments  originally  constructed,  and  the  natural  accre- 
tions of  the  same  from  time  to  time.” 

”ln  constructing  a canal  its  banks  sliould  be  made  strong 
enough  to  retain  the  water  in  its  channel,  not  only  against 
the  adjacent  land  in  the  condition  it  then  is,  but  also  against 
any  lawful  use  that  such  land  may  he  put  to.” 

(1827) — Staffordshire  & Canal  Nav.  Co.  v.  Hallen,  6 B.  & 
C.,  317;  S.  C.,  9 I).  & K.,  226  ; 30  Kev.  Kep.,  333;  13  E.  0. 
Ij.,  151. 

3.  The  canal  commtssionees  hold  the  canal  with  all  its 

INCIDENTS  IN  TRUST  FOR  PUBLIC  USES,  AND  CAN  GRANT  NO  EASEMENT 
THEREIN  FOR  THE  BENEFIT  OF  PRIVATE  PARTIES  AND  TO  THE  EXCLUSION 
OF  THE  PUBLIC. 

We  maintain  that  the  same  rule  applies  to  the  Canal  Commis- 
sioners, public  officers  holding  public  property  in  trust  for  pub- 
lic uses,  as  applies  to  a municipal  corporation  holding  streets  in 
trust  for  public  uses. 

The  whole  law  on  the  subject  is  stated  in  the  well  known  cases  of 

Field  V.  Barling,  149  111.,  556. 

Hihhard  v.  Chicago,  173  111.,  91. 

Snyder  v.  Mt.  Pulaski,  176  111.,- 397. 

The  law  on  the  subject  was  summarized  by  this  court  in  the 
Pulaski  case  thus: 

^^The  streets  of  a city  are  dedicated  for  public  use,  and 
for  these  purposes  the  city  council  may  improve  and  control 
them  and  adopt  needful  rules  for  their  management  and  use. 
But  that  body  has  no  power  to  alien  or  otherwise  encumber 
such  streets  so  long  as  they  are  public  streets,  but  must  hold 
them  dn  trust  for  public  uses  only,  and  hence  no  easement 
or  right  therein  not  of  a public  character  can  be  granted  by 
a municipality  or  acquired  by  any  individual  or  corporation 
for  exclusive  private  use,  to  the  exclusion  of  the  public. 
{Field  V.  Barling,  149  111.,  556;  Hibbard  & Co.  v.  City  of 
Chicago,  173  id.,  91.)  A permanent  encroachment  upon  pub- 
lic streets  for  a private  use  is  a purpresture,  and  is  in  law 
a nuisance.  {Briggs  v.  Phillips,  103  N.  Y.,  77;  Smith  v.  State, 


) 

> 


L\‘)  N.  J.  L.,  7lL^;  AffonK’if  (Ameral  v.  Hcislum,  1<S  N.  J. 

-HO;  Staic  V.  Woodirard , 1^4-  Vt.,  0l2;  Chditdxtrlain  v.  Fjnfudd, 
4.‘)  N.  II.,  of)!);  (U)  III  moil  fvddltli  v.  King,  l.‘>  Mote.,  115;  ///'/>»- 
((■  6V>.  v.  Clii)  of  Chicago,  supra.)  hi  tlio  last  (*as(‘  ('itod 
it  was  said  (p.  98):  ‘Whore  the  city  has  autlioriz(‘d  a toin- 
porary  iiso  whioh  causes  a temporary  olistriictiori,  one  hav- 
ing- been  licensed  to  exercise  such  temporary  use  would  not 
he  liable  for  a penalty,  under  the  ordinances,  for  obstruct- 
iiig  the  street,  as  it  was  permitted  as  a matter  of  grace  or 
favor.  That  such  permission  was  given  may  be  implied  from 
circumstances.  {Gridley  v.  City  of  Bloomington,  68  111.,  47.) 
But  when  the  city  demands  the  removal  of  such  a structure, 
it,  if  permitted  to  remain  thereafter,  becomes  a nuisance.’ 
{Snyder  v.  Mt.  Pidaski,  176  111.,  402-3.)” 

The  other  cases  cited  in  the  brief,  from  New  York,  New  Jersey 
and  Vermont,  are  in  full  accord. 

If  public  servants,  employed  to  take  care  of  public  property 
and  conserve  it  for  the  public,  can  give  it  out  for  private  uses  to 
Munroe,  and  Griswold,  and  the  Economy,  there  soon  will  be  no 
public  property  left. 

The  case  is  aggravated  when  the  property  is  put  not  merely 
to  a private  use,  but  to  a dangerous  private  use, — as  in  the  Barling 
case,  when  the  defendant  was  permitted  to  blockade  a public 
highway  by  an  elevated  bridge,  which  shut  out  light  and  air,  pre- 
vented the  passage  of  fire  apparatus,  and  imperiled  passers-by. 
In  that  case  the  court  cited  with  approval  Barnett  v.  Johnson,  15 
N.  J.  Eq.,  481,  saying  that: 

“ ‘even  the  Legislature  would  have  no  more  right  to  deprive 
them  (abutting  owners)  of  it  without  com})ensation  than  they 
would  have  to  draw  oft  the  water  from  a navigable  stream.’  ” 

Here,  also,  the  work  is  dangerous.  It  imperils  the  canal;  and, 
as  the  court  there  cited  the  rule  against  blockading  streams  as 
applicable  to  structures  blockading  streets,  so  now,  we  cite  the 
cases  protecting  the  streets  as  equally  effective  to  protect  the 
stream. 


4.  TilK  LEASES  AKE  IN  TERMS  ASSIGNABLE  TO  IRRESPONSIBLE  PARTIES 
WITHOUT  THE  (vVnAL  OoM  M ISSIONERS  ^ CONSENT,  AND  THIS  WILL  RE- 
LEASE THE  DEFENDANT  AND  I.EAVE  THE  StATE  NO  REMEDY  FOR  THE  PRO- 
TECTION OF  THE  CANAL. 

And  again  it  will  be  remembered  that  the  contract  was  made 
with  Griswold  and  his  assigns,  and  that  the  familiar  clause  for 
such  assignable  contracts  to  the  effect  that  ‘‘this  contract  shall 
not  be  assigned  or  underlet  without  the  consent  in  writing  of  the 
])arty  of  the  first  part  had  and  obtained,’’  was  conspicuous  for  its 
absence.  It  could  be  assigned  to  a bootblack,  to  a beggar,  or  to  a 
multi-million  corporation,  the  moment  after  it  was  made,  and  re- 
assigned to  another  at  any  time  thereafter,  without  any  consent, 
let  or  hindrance  on  the  part  of  the  Canal  Commissioners. 

But  the  assignment  clause  is  conspicuously  present  in  general 
contract  of  the  defendant  with  its  contractor,  Heyworth.  It  pro- 
vides in  the  general  contract  form.  Clause  8,  “that  he  will  not  as- 
sign, by  power  of  attorney  or  otherwise,  any  portion  of  said  work, 
unless  by  and  with  the  previous  consent  of  the  party  of  the  first 
part.” 

“The  rule  is,  as  the  liability  of  the  assignee  grows  out  of 
privity  of  estate  and  that  only,  it  ceases  when  that  ])rivity 
ceases  to  exist,  and  each  successive  assignee  is  liable  only  for 
such  breaches  of  covenant  as  occur  while  there  is  privity  of  es- 
tate between  him  and  the  lessor.” 

Consolidated  Coal  Co.  v.  Peters,  166  111.,  361,  at  367-8, 

• citing  Taylor  on  Landlord  and  Tenant,  Sec.  452;  Wood 

on  Landlord  and  Tenant,  Secs.  307,  339,  340,  349. 

It  follows  from  this  that  the  defendant  could  assign  these  con- 
tracts and  leases  “to  a beggar,  or  a person  who  is  on  the  eve  of 
quitting  the  country  forever,”  the  town  pump,  or  any  insolvent 
assignee,  or  each  one  to  a different  insolvent  assignee,  and  divest 
itself  of  liability. 

(2  Taylor  Landlord  and  Tenant,  Sec.  452.) 

It  did  not  enter  into  the  covenants  in  the  first  place  and  is  there- 
fore not  primarily  liable.  It  is  liable  only  by  privity  of  estate, 
and  its  privity  of  estate  can  be  cut  off  by  assignment  to  an  in- 
solvent assignee.  (Ibid.,  Secs.  452,  454.) 


And  no  bond  or  security  of  any  kind  was  taken  for  the  [xn-fonn- 
ance  of  the  work  to  tlie  satisfaction  of  the  Canal  (Jonnnissiornn-s 
or  for  the  protection  of  the  (yanal. 

The  evidence  affirmatively  shows  that  after  the  assignment  to 
the  Economy  Light  & Power  Company,  defendant  notified  the 
Canal  Commissioners  that  it  was  about  to  begin  work  and  asked 
the  Commissioners  to  designate  an  inspector  to  oversee  the  work 
on  the  part  of  the  Canal  Commissioners ; that  they  designated  one 
Kehoe,  who  has  since  died,  and  no  inspector  has  been  appointed  in 
his  place. 

This,  clearly,  amounted  to  an  acceptance  ])y  the  Commissioners 
of  the  defendant  as  the  lessee,  which  released  the  original  tenant 
of  any  responsibility. 

The  consequence  is  that  only  the  assignee  in  possession  is  liable, 
and  it  can  acquit  itself  of  liability  whenever  it  chooses. 

We  are  told  that  this  merely  shows  that  the  Commissioners  made 
and  improvident,  a foolish  contract. 

The  fact  that  such  a contract  is  made  assignable  to  an  insolvent 
assignee  independent  of  any  consent  by  the  Canal  Commissioners, 
itself  constitutes  an  element  of  peril  to  the  canal,  and  the  reason 
why  the  court  of  equity  at  the  suit  of  the  state  will  scrutinize  the 
transaction  closely.  It  amounts  to  an  unconscionable  contract, 
and  if  otherwise  violates  the  law  it  will  be  pn,t  an  end  to  by  the 
court. 

5.  THE  KANKAKEE  FEEDER  LEASE  IS  VOID. 

The  canal  was  provided  with  feeders  from  the  beginning. 
Among  these  was  the  Kankakee  feeder,  concerning  which  it  ap- 
pears in  evidence  from  the  (kinal  Ke])ort  of  1900,  ]).  218,  as  follows: 

‘ ‘ K.INKAKEE  FEEDER. 

^^A  navigable  feeder  from  the  Kankakee  Piver  was  /sur- 
veyed in  1845  and  ordered  constructed  in  1846.  The  width  to 
be  40  feet  at  top  water  line,  26  feet  at  bottom,  4 feet  deep  ex- 
cept at  lower  end,  where  the  depth  was  to  be  5 feet.  The  slope 
to  be  2 to  1 raised  5 feet  above  top  water  line — declivity  2 
inches  to  the  mile.  This  feeder  was  com])leted  in  1848.  The 
termination  of  the  feeder  was  at  a point  on  the  canal  1,820 
feet  S.  E.  of  the  N.  W.  corner  of  Section  31,  Tp.  34  N.,  R.  9, 


6G 


piissos  ill  a soutliwost  ('oiirse  across  tlio  Du  I^age  River,  wliere 
it  enters  Section  ofi,  Tp.  :U  N.,’R.  H;  thence  S.  W.  l,05f)  feet  to 
the  center  section  line  oMS  feet  west  of  the  east  line  of  the  sec- 
tion ; thence  south  to  a point  792  feet  north  of  the  south  line 
of  Section  MG;  thence  southeast,  entering  Se(*tion  Ml-34-9  again 
at  a point  MG4  feet  north  of  its  southwest  corner;  crossing  this 
(‘orner  it  then  passes  through  Sections  G,  4 and  5 to  a point 
near  the  center  of  the  southeast  quarter  of  Section  9 ; all  in 
Tp.  33  N.,  R.  9,  whence  a dam  was  constructed  across  the 
Kankakee  River  and  from  which  it  received  its  supply  of 
water. 

‘‘The  90-foot  reserve  was  surveyed  in  1848  by  Artemus  J. 
Mathewson,  a plat  was  made  of  the  feeder  and  reserve,  and 
appears  in  the  plat  hook  No.  2,  Canal  Records. 

“The  total  cost  api^roximated  very  nearly  to  $50,000. 

“The  Kankakee  feeder  has  not  been  used  for  several  years. 
The  aqueduct  that  carried  the  water  over  the  Des  Plaines  and 
Du  Page  Rivers  has  long  since  gone  to  decay.  There  are, 
however,  over  125  acres  of  good  land  used  for  this  feeder 
that  now  belong  to  the  State  of  Illinois.” 

Elsewhere  it  appears  in  evidence  that  use  of  the  Kankakee  to 
convey  water  to  the  canal  ceased  in  the  year  1888,  less  than  20 
years  before  the  suit  was  begun,  and  14  years  before  the  lease  was 
made. 

Evidence  of  Dimmick  (Abst.,  p.  501). 

Evidence  of  McDonald  (Abst.,  p.  275). 

This  feeder  is  the*  subject  of  two  of  the  lea^ses  in  question. 

By  the  lease.  Exhibit  B,  September  2,  1904,  the  Commissioners 
leased  to  Griswold  and  assigns,  for  20  years  plus  20  years  more, 
not  only  (1)  the  90-foot  strip  along  the  tow-path  side  of  the  canal 
through  six  sections  of  land,  and  (2)  the  riparian  tract  in  Section 
31,  but 

“Also  that  part  of  the  Kankakee  feeder  and  the  90-foot 
strip  on  each  side  of  said  feeder  in  Section  31  * * * and 

in  Section  5^  * * * ■\^in  County,  Illinois.” 

Tills  covered  the  mouth  of  the  feeder,  the  part  crossing  the  ripa- 
rian tract  and  Des  Plaines  River  and  the  adjacent  portion  of  the 
feeder. 

By  the  second  lease,  exhibit  C,  of  this  information,  dated  August 
8,  1905,  the  Commissioners  leased  to  Griswold,  his  successors  and 


iissii>ns,  ilip  right  ot  the  State  to  divert  the  waters  of  tlie  Kanka- 
kee River  into  the  Kankakee  Feeder  and  discharge  theai  into  the 
Des  Plaines  River  in  Section  31;  that  is,  into  the  pool  to  be  formed 
by  the  dam  (thereby  the  feeder,  a feeder  of  the  mill-dam  instead  of 
a feeder  of  the  canal) ; 

Together  with  the  right  of  the  state  to  repair  and  construct  the 
dam  across  the  Kankakee  River ; 

Also  such  right  of  the  state  as  is  within  the  control  of  the  Canal 
Commissioners  to  construct  at  each  end  of  the  Kankakee  Feeder 
suitable  gates  for  controlling  the  discharge  of  the  waters  of  the 
Kankakee  River  through  the  feeder ; 

Also  such  right  as  the  Canal  Commissioners  have  to  enter  upon 
the  feeder  and  dam  in  connection  therewith. 

This  lease  also  was  made  subject  to  the  former  lease.  This 
lease  ran  for  20  years  for  the  rental  of  $150  a year,  payable  on 
August  10th  of  each  year. 

(A)  This  lease  contained,  among  other  provisions,  the  follow- 
ing: 

‘^And  it  is  further  provided  that  said  party  of  the  second 
part  shall  have  the  right  to  cancel  this  lease  at  any  time  at  his 
option  after  five  (5)  years  from  the  date  hereof.’’ 

Also  the  following: 

^^It  is  herein  further  provided  that  this  lease  may  be  ex- 
tended for  a further  period  of  twenty  years  at  a rent  to  be 
fixed  by  an  appraisal,  to  be  made  by  three  disinterested  ap- 
praisers, to  be  appointed  by  the  Governor,  and  the  rent  fixed 
by  such  appraisal  shall  be  subject  to  the  approval  of  the  Canal 
Commissioners  or  other  proper  officers  of  the  State  at  such 
time  having  charge  of  the  canal  property. 

^^It  is  herein  further  stipulated  and  agreed,  and  the  Canal 
Commissioners  hereby  expressly  reserve  the  right  to  cancel 
this  lease  and  recover  possession  of  the  land,  property  and 
rights  above  demised  and  referred  to  whenever  in  the  judg- 
ment of  the  Canal  Commissioners,  or  other  proper  officers  of 
the  State  at  such  time  having  charge  of  canal  property,  they 
shall  deem  the  interests  of  the  State  require  it  to  re-possess 
and  use  said  property  for  State  purposes.” 

The  Legislature  of  the  State  are,  it  is  submitted,  the  proper 
officers  having  charge  of  canal  property.  The  Legislature,  on  No- 
vember 27,  1907,  passed  the  resolution  which  is  set  out  supra. 


It  is  siibinittod  tliat  the  power  of  cancel lation  reserved  in  the 
lease  l)y  the  (/Oinmissioners,  the  agents  of  the  Legislature  may 
])i-operly  be  exercised,  and  was  properly  exercised,  by  the  i)assage 
of  this  resolution. 

'']’'lie  failure  and  refusal  of  the  Canal  Commissioners  to  obey  this 
resolution  does  not  defeat  the  will  of  the  Legislature,  but  it  is  an 
added  ground  for  maintaining  the  present  proceeding  and  for  the 
passage  of  the  Act  of  December  6,  1907. 

It  is  further  submitted  that  by  the  Act  of  December  6,  1907,  en- 
titled ^‘AN  ACT  recognizing  the  Des  Plaines  and  Illinois  Rivers 
as  navigable  streams,  and  to  prevent  obstructions  being  placed 
therein,  and  remove  obstructions  therein  now  existing,”  the  power 
to  cancel  said  lease  was  properly  exercised.  Said  Act  is  as  fol- 
lows: 

‘CSection  1.  Be  if  enacted  by  the  People  of  the  State  of 
Illinois,  represented  in  the  General  Assembly:  That  the  Des 
Plaines  and  Illinois  Rivers  throughout  their  courses  from  and 
below  the  water-power  plant  of  the  main  channel  of  the  Sani- 
tary District  of  Chicago,  in  tlie  township  of  Lockport,  at  or 
near  Lockport,  in  the  County  of  Will,  are  hereby  recognized  as 
and  are  hereby  declared  to  be  navigable  streams;  and  it  is 
made  the  special  didy  of  the  Governor  and  of  the  Attorney 
General  to  prevent  the  erection  of  any  structure  in  or  across 
said  streams  without  explicit  authority  from  the  General  As- 
sembly; and  the  Governor  and  Attorney  General  are  hereby 
authorized  and  directed  to  take  necessary  legal  action  or  ac- 
tions to  remove  all  and  every  obstruction  now  existing  in  said 
rivers  that  in  any  wise  interferes  with  the  intent  and  purpose 
of  this  Act. 

^‘Section  2.  Whereas,  an  emergency  exists;  this  Act  shall 
be  in  force  and  effect  from  and  after  its  passage. 

Approved,  December  6,  1907.” 

(Laws  of  Illinois,  1907-1908,  pp.  32-33.) 

It  is  submitted  that  the  rule  is  the  same  in  respect  to  such  bodies 
as  the  Canal  Commissioners,  as  with  regard  to  municipal  corpora- 
tions, which  is  laid  down  by  the  Supreme  Court  of  the  United 
States  in  Laramie  County  v.  Albany  County,  92  U.  S.,  307,  at  312, 
in  the  following  words : 

‘‘Political  subdivisions  of  the  kind  are  always  subject  to  the 
general  laws  of  the  State;  and  the  Supreme  Court  of  C^on- 
necticut  decided  that  the  Legislature  of  that  State  have  inline- 


69 


morially  exercised  the  power  of  dividing  towns  at  their  pleas- 
ure, and  upon  such  division  to  apportion  the  common  property 
and  the  common  burdens  as  to  them  shall  seem  reason al)le  and 
equitable.  Granby  v.  Thurston,  23  Conn.,  419;  Yarmouth  v. 
Skillings,  45  Me.,  142 ; Langtvorthy  v.  Dubuque,  16  Towa,  273 ; 
Justices’  Opinion,  6 Cush.,  577. 

‘‘Such  corporations  are  the  mere  creatures  of  the  Legisla- 
tive will ; and,  inasmuch  as  all  their  powers  are  derived  from 
that  source,  it  follows  that  these  powers  may  be  enlarged, 
modified,  or  diminished  at  any  time,  without  their  consent,  or 
even  without  notice.  They  are  but  subdivisions  of  the  State, 
deriving  even  their  existence  from  the  Legislature.  Their 
officers  are  nothing  more  than  local  agents  of  the  State;  and 
their  powers  may  be  revoked  or  enlarged  and  their  acts  may 
be  set  aside  or  confirmed  at  the  pleasure  of  the  paramount 
authority,  so  long  as  private  rights  are  not  thereby  violated. 
Russell  V.  Reed,  27  Penn.  St.,  170.” 

The  direction  of  the  Legislature  to  exercise  the  reserved  power 
to  cancel  this  lease  was  therefore  binding  upon  the  Canal  Com- 
missioners; and  in  this  proceeding  in  equity  that  which  ought  to 
have  been  done  will  be  treated  as  done  and  the  feeder  lease  is 
therefore  to  be  considered  as  a canceled  lease. 

(B)  Again,  this  feeder  lease  is  void  by  reason  of  the  renewal 
provision,  in  like  manner  as  the  lease  Exhibit  B.  (Abst.,  p.  34.) 

But,  further  than  that,  the  feeder  itself  is  an  integral  part  of  the 
canal,  and  as  such  is  beyond  the  power  of  the  Canal  Commission- 
ers to  barter  away  for  40  years,  or  20  years,  or  one  year,  or  any 
other  time.  The  statute  under  which  the  Commissioners  were 
acting  at  the  time  this  lease  was  made,  conferred  upon  the  Commis- 
sioners the  following  general  authority: 

R.  S.,  Ch.,  19,  Sec.  8 (Anidt.  of  Apr.  21,  1899)  : 

“Said  Commissioners  shall  have  control  and  managemenl  of 
the  Illinois  and  Michigan  Canal,  mcluding  its  feeders,  basins, 
and  appurtenances,  and  the  property  thereto  belonging,  and 
all  locks  and  dams  and  other  improvements  of  the  navigation 
of  the  Illinois  and  Little  Wabash  Rivers,  and  shall  have  au- 
thority,” etc. 

(Here  follow  the  nine  enumerated  specifications  of  author- 
ity, which  include)  : 

“Fifth — To  lease  from  time  to  time  any  of  the  canal  lands 
or  lots  owned  by  the  State:  Provided,  no  lease  shall  be  for 
a period  exceeding  twenty  years. 

“Sixth — To  lease  from  time  to  time  to  the  highest  bidder 


70 


therefor,  any  water  ])ower  and  lands  or  lots  eonneeted  there- 
with. ^ 

(Here  follow  the  provisions  for  advertising,  limiting  leases  to 
20  years,  requiring  bids  to  be  accompanied  by  security,  and  also 
the  following)  : 

(C)  The  Kankakee  Feeder  lease  (Exhibit  (1,  Abst.,  p.  36)  is  a 
water-power  lease. 

Section  8,  Clanse  Sixth.  * * * ‘‘All  leases  of  water-power 
and  extensions  thereof  shall  be  subject  to  the  right  of  the 
Cornmissi oners  to  resume,  without  compensation  to  the  lessee, 
the  use  of  any  such  water  power  for  the  purpose  of  the  canal, 
and  also  wholly  to  abandon  or  destroy  the  work  by  the  con- 
struction of  which  the  water  privilege  shall  have  been  created, 
whenever,  in  the  opinion  of  the  Legislature,  such  work  shall 
cease  to  be  advantageous  to  the  State. 

“Seventh — To  lease  from  time  to  time  to  the  highest  and 
best  bidder  (after  publishing  notice  in  some  newspaper  pub- 
lished in  the  county  where  the  ice  privilege  to  be  leased  may 
be),  in  sections  not  exceeding  one  thousand  feet,  lineal  meas- 
ure, upon  such  terms  as  not  to  interfere  with  the  proper  use 
and  management  of  the  canal,  the  right  to  take  and  harvest  ice 
therefrom,  or  from  any  of  its  feeders,  basins  and  appurte- 
nances, and  to  prohibit  all  persons  from  taking  and  harvesting 
ice  therefrom  without  such  lease:  Provided,  no  such  lease 
shall  be  for  a longer  time  than  twenty  years.” 

4 Starr  & Curtis’  Ann.  Stats.  (Supp.,  1902),  pp.  90,  91. 

(D)  No  power  is  conferred  on  the  Commissioners  to  let  out  the 
Canal  Feeders. 

None  of  these  confer  power  to  lease  any  part  of  the  Canal 
proper,  or  its  dams,  feeders,  basins  or  appurtenances.  The  ab- 
sence of  an  express  power  to  do  these  things  is  the  withholding  of 
such  power  by  the  Legislature. 

It  is  clear  that  the  Canal  Commissioners  have  no  right  to  alien- 
ate, or  dispossess  the  State  of  the  canal  or  any  part  of  it.  The 
very  language  of  the  statute,  “The  canal,  including  its  feeders/’ 
makes  the  feeder  part  of  the  canal,  and  plainly  it  is  so,  independ- 
ent of  any  statutory  words. 

(E)  The  lands  acquired  by  the  State  for  the  Canal  and  for  the 
feeder  do  not  revert  to  former  land  owners  upon  the  abandonment 


71 


of  the  canal.  And  its  inni-nser  confers  no  authority  on  the  (^nn- 
inissi oners  to  dispose  of  it. 

Ilexford  v.  Knight,  31  N.  Y.,  308. 

Frank  v.  Evansville  S Co.,  Ill  Tnd.,  132. 

Mason  v.  Lake  Erie  & S.  W.  Eg.  Co.,  1 Fed.  Hep.,  712. 

Craig  v.  Allegheny,  53  Pa.  St.,  477. 

And  uses  of  canal  property  for  purposes  not  connected  with  tlie 
use  of  the  canal  (e.  g.,  driving  along  its  banks)  are  not  excused  by 
the  fact  that  the  bridge  over  the  canal  was  broken,  and  rendered 
any  other  course  difficult. 

White  V.  State,  14  Ohio,  468. 

(F)  No  length  of  non-user  will  extinguish  the  rights  of  the 
State  in  the  canal  property. 

Curran  v.  Louisville , 83  Ky.,  628. 

Nor  does  the  State  by  permitting  the  feeder  (in  this  case  a 
feeder  covered  by  timbers,  planks  and  earth)  to  be  used  as  a pas- 
sageway for  more  than  20  years,  cease  to  hold  the  feeder  as  a 
feeder  or  become  liable  for  injuries  upon  it  as  a street  or  highway. 

Donahue  v.  State  of  N.  Y.,  112  N.  Y.,  142;  2 L.  E.  A.,  576. 
or  lose  its  title  to  the  property. 

State  V.  Doig,  2 Eich.  (S.  Car.),  179. 

The  feeder  is  still  the  pro])erty  of  the  State,  as  the  above  quota- 
tion from  the  Canal  Commissioners’  report  for  1900  shows. 

There  are,  hoivever,  over  125  acres  of^  good  land  used-  for  this 
feeder  that  now  belongs  to  the  State  of  Illinois.’') 

(Canal  Eeport,  1900,  p.  220.) 

The  Commissioners  have  no  power  to  dispose  of  this  property. 

The  defense  sought  by  use  of  the  words  ‘Cxbandonment,”  ‘^ease- 
ment” and  “reverter”  to  justify  this  ultra  vires  act — we  reply 
that  no  competent  evidence  of  abandonment  or  reverter  was  re- 
ceived, that  what  evidence  as  to  this  was  received  was  incompetent 
and  erroneously  received — we  further  re])ly  that  whatever  right 
and  title  the  State  had,  it  was  the  duty  of  the  Commissioners  to 
conserve.  Like  the  Consuls  of  the  Eepublic,  they  should  take  care 
‘‘ne  quid  res  puhlica  detrimenti  capiat.” 


Tlio  act  of  tlie  Commissioners  in  leasing  this  part  of  tlie  canal, 
ev(‘n  if  it  is  in  disuse,  is  nltra  vires  and  void. 


TV. 

Till*:  FI.()\VA(iE  (’ONI’RACT  AN!)  TFIK  LKASE  OF  THE  RIPARIAN  TRACT,  TOW- 
PATH  BANK,  AND  OO-FOOT  STRIP^  ARE  SEPARATE  CONTRACTS. 

THEY  MAY'  PASS  TO  SEPARATE  GRANTEES,  AND  SHOULD  BE  CONSTRUED  AS 
DISTINCT  AND  SEPARATE  CONTRACTS. 

BUT  IF  CONSTRUED  TOGETHER  AS  ONE  CONTRACT,  THE  RESULTING  CON- 
TRACT IS  A water-power  lease  made  in  violation  of  the  stat- 
ute THEREON,  AND  THEREFORE  VOID. 

1.  The  contracts  are  separate  contracts.  It  has  been  contended 
contra  that  the  fiowage  contract,  lease  and  pole-line  lease  of  the 
tow-path,  being  made  on  the  same  day,  are  to  be  construed  as  one. 

We  deny  this  contention.  The  lease  itself  (Ex.  B)  (Abst.,  p.  34), 
to  Griswold,  his  successors  and  assigns,  is  expressly  made  ‘'subject 
to  a contract  dated  the  2d  day  of  Septemlier,  A.  D.  1904,  to  Harold 
F.  Griswold,  affecting  said  premises,”  and  “it  is  further  cove- 
nanted and  agreed  between  the  parties  aforesaid  that  said  party  of 
the  second  part  is  hereby  charged  with  knowledge  of  all  of  the 
provisions  contained  in  said  contract  with  Harold  F.  Griswold  in 
so  far  as  they  affect  the  ju'emises  hereby  leased.” 

Each  contract  is  made  assignable  without  the  consent  of  the 
Commissioners.  They  may  be  assigned  to  different  assignees  and 
the  second  is  expressly  made  subject  to  the  provisions  of  the  first. 
This  was  for  the  express  purpose  of  making  the  assignee  of  the 
second  take  subject  to  the  rights  of  the  adverse  assignee  of  the 
first.  ‘‘Griswold,  his  successors  and  assigns”  in  the  one  is  not  the 
same  party  as  “Griswold,  hi's  successors  and  assigns”  of  the  other. 
They  are  separate  contracts.  The  trial  court  so  held.  During  the 
closing  argument  the  Court  said  (p.  4898)  : 

“You  may,  perhaps,  shorten  your  argument,  Mr.  Reeves. 
You  may  assume  that  if  the  flowage  contract  is  to  be  dealt  with 
separately  from  the  20-year  lease,  and  that  if  the  true  inter- 
pretation of  it  is  that  it  grants  right  in  perpetuity  it  is  void. 
You  need  not  argue  that.”  (Alist.,  ]>.  1718.) 


IW 


And  Inter  ( p.  4t)0-l-)  : 

The  Ooiii’t:  slinll  hold  tliein  to  be  separate  ('ontraets.” 

And  ill  its  final  opinion  tlie  trial  eourt  said: 

‘‘Now,  as  to  the  interpretation  of  tlie  lease  and  the  flowage 
contract.  In  my  judgment  these  two  documents  are  distinct 
and  separate;  they  were  intended  to  be  distinct  and  separate.  ' 
They  were  so  intended  by  the  parties,  and  they  use  express 
language  which  has  so  clearly  indicated  it.  They  are  two  sep- 
arate documents,  both  sealed  instruments,  and  that  as  a mat- 
ter of  common  law  would  make  them  separate  and  distinct 
deeds.  Then  the  second  instrument  refers  in  terms  to  the 
first  and  charges  the  grantee  expressly  with  knowledge  of  it. 
There  would  be  no  need  of  their  charging  the  grantee  with 
knowledge,  particularly  if  the  grantee  was  the  same  person,  if 
they  were  intended  to  be  construed  together.  The  very  fact 
that  he  is  expressly  charged  with  knowledge  of  another  in- 
strument in  the  making  of  a second  instrument,  is  to  my  mind 
clear  evidence  that  the  parties  intended  that  the  instruments 
should  be  separate  and  distinct,  both  being  assignable  in  their 
nature.  ’ ^ 

Also  : 

“As  to  the  contract  itself,  there  being  no  limitation  of  the 
time,  it  seems  to  me  that  it  is  an  attempt  on  the  part  of  the 
Commissioners  to  grant  a right  in  perpetuity  to  Griswold  and  ^ 
his  assigns  to  overflow  this  land ; that  the  grant  of  such  a right 
in  perpetuity  is  equivalent  to  the  sale  of  an  interest  in  the 
land,  the  sale  of  the  easement,  and  that  such  sale  of  the  ease- 
ment is  beyond  the  power  of  the  Trustees  because  they  could 
not  make  any  sale  at  all  of  the  90-foot  strip.” 

2.  But  if  construed  together  the  lease  and  flowage  contract  con- 
stitute a water-power  lease  made  in  violation  of  the  statute,  and 
are  therefore  void.  Construed  together,  they  are  a lease  of  the 
right  to  build  “a  dam  and  other  works”  and  to  extend  the  dam 
across  the  river  and  90-foot  stri]),  to  maintain  the  dam  22  feet  high, 
to  attach  it  to  the  tow-palh  em])ankment,  to  flow  the  water  u}) 
against  the  tow-])ath  bank  and  use  the  tow-path  embankment  itself 
as  a retaining  wall,  to  overflow  the  90-foot  strip  and  the  riparian 
tract  and  hack  the  water  up  alongside  the  canal  for  10  miles,  and  to 
convey  the  ])ower  as  electrical  energy  by  a ])ole  line  on  the  tow- 
path  for  25  miles. 

These  are  all  the  distinctive  features  of  a water-power  lease. 

And  all  this  was  agreed  upon  with  the  avowed  purpose  on  the 


74 


])art  of  tlie  lessee  of  eonstrueting*  an  extensive  permanent  water- 
powei'  ])lant.  The  ordinary  (4ause  in  such  leases  for  eancellation 
on  30  or  00  days’  notice  was  left  out  l)ecause  inconsistent  with  the 
permanent  works  proposed.  Commissioner  Sackett’s  testimony 
on  the  subject  (condensed)  is: 

‘‘That  clause  in  the  lease  giving  an  option  of  renewal  to 
Griswold  and  assigns  was  suggested  by  Mr.  Walker  (attorney 
for  Canal  Commissioners).  Most  of  the  canal  leases  provide 
for  a cancellation  upon  notice;  that  feature  was  discussed ; that 
if  in  a work  of  that  sort  there  was  cancellation  provided  upon 
80  or  60  days’  notice,  it  would  hamper  this  proposition.” 
(Ahst.,  p.  241.) 

The  lease  is  expressly  designated  both  by  Munroe  and  the  Com- 
missioners, themselves  as  a water-power  lease  by  the  proceedings 
of  the  Canal  Commissioners,  at  the  meeting  of  April  5,  1905 ; there, 
as  the  record  shows,  “Mr.  Charles  A.  Munroe  was  present,  sub- 
mitted proposition  for  additional  lease  of  ivater  power  on  the  Des 
Plaines  Kiver.”  (x\l)st.,  p.  262.) 

Additional  to  what!  Additional  to  the  lease  of  water-power  he 
had  received  before.  The  only  one  he  had  received  before  was 
Exhibit  B.  (Ahst.,  p.  84.)  Exhibit  B interpreted  as  to  the  uses 
intended,  by  referring  to  the  flowage  contract  (as  was  done  by  the 
court  below)  is  a lease  of  water-power  and  as  such  is  void,  because 
not  made  by  public  advertisement  to  the  best  bidder  as  the  statute 
provides. 

The  statute  on  leases  of  water-])ower  (as  in  force  in  1904)  reads 
as  follows : 

“Section  8.  Said  Commissioners  * * * shall  have  au- 
thority ^ ^ ^ 

Sixth — To  lease  from  time  to  time,  to  the  highest  bidder 
therefor,  any  ivater-power  and  lands  or  lots  connected  there- 
with. Before  any  such  lease  shall  be  made,  at  least  thirty 
days’  public  notice  of  the  intended  letting  shall  be  given 
by  publication  in  some  newspaper  published  in  the  neighbor- 
hood, and  such  other  notice  as  the  Commissioners  shall  deem 
best.  The  Commissioners  shall  have  power  to  require  that 
bids  be  accompanied  by  security,  and  may  reject  all  bids  not 
satisfactory  to  them,  and  re-advertise  until  they  shall  receive 
satisfactory  bids.  No  lease  shall  be  for  a period  exceeding 
twenty  years,  but  the  Commissioners  may  ]:)rovide  for  the  ex- 
tension of  any  lease  from  time  to  time,  not  exceeding  twenty 
years  at  any  one  time,  at  a rent  to  be  fixed  by  an  appraisal. 


75 


to  ho  iiiado  by  throe  disiiitorostod  appi’aisco-s  to  l)o  appointed 
by  tlio  (lovonior,  and  snob  appraisal  shall  b{‘  snbjeof 
to  the  approval  of  the  (75)niinissioners.  All  leases  of 
water-})ower  and  extensions  thereof  shall  !)e  subjeet  to  tlie 
right  of  the  Commissioners  to  resume,  without  compensation 

. to  tlie  lessee,  the  use  of  any  such  water-power  for  the  purpose 
of  the  canal,  and  also  wholly  to  abandon  or  destroy  the  work 
by  the  construction  of  which  the  water  privilege  shall  have 
been  created,  whenever,  in  the  opinion  of  the  Legislature,  such 
work  shall  cease  to  be  advantageous  to  the  State.”  (R.  S., 
Ch.  19,  Sec.  8,  Cl.  6,  as  amended  by  Act  of  April  21,  1899,  Canal 
Laws,  pp.  173-4.) 

None  of  these  restrictions  were  observed.  It  follows  that  con- 
struing the  three  contracts  together  as  a water-power  lease,  it  is 
void. 

The  defense  contended  contra  to  this  that  ‘‘The  water-power  re- 
ferred to  in  the  Act  as  the  water-power,  c/  the  canal,  created  by 
the  canal . ” ( p . 907 . ) 

But  that  is  not  the  statute.  The  water-power  covered  by  the 
statute  is  any  water  power. 


V. 

r 

THE  SALE  OF  CANAL  LANDS  WAS  MADE  BY  AN  EMPLOYE  OF  THE  CANAL 
COMMISSIONEKS,  IN  THE  ABSENCB  OF  ALL  THE  COMMISSIONERS,  AND 
WITHOUT  ANY  AUTHORITY  CONFERRED  UPON  HIM,  AND  WAS  VOID. 

The  testimony  as  to  the  sale  is  given  by  the  employe  of  the  board, 
John  M.  Snyder,  as  follows: 

“Witness  Snyder:  I conducted  the  sale  at  the  time  named 
in  the  notice,  viz.,  Lecember  b,  1904,  at  10  a.  m.  There  were 
also  present  Mr.  Munroe,  Mr.  Kehoe  (a  canal  employe,  who 
died  January,  1908),  and  the  employes  of  the  office.  None  of 
the  Canal  Commissioners  were  present,  nor  was  Mr.  Walker, 
the  attorney  for  the  Board.  I offered  the  property  for  sale. 
There  was  no  one  bid  except  Mr.  Munroe.  I struck  it  off  and 
declared  it  sold.  I was  instructed,  I think,  in  the  absence  of 
the  Commissioners  or  the  attorney,  by  the  superintendent , to 
conduct  the  sale,  and  did  so  in  pursuance  of  those  instruc- 
tions. 

“My  recollection  is  that  it  was  the  general  understanding 
that  Mr.  Walker  would  come  down  and  conduct  the  sale,  but 


7(; 


at  the  last  moment  lie  eoiild  not  be  present.  I think  Supt.  Mc- 
Donald was  eompelled  to  be  in  Chicago  on  that  day. 

‘‘My  instructions  were  received  from  Mr.  McDonald.  I was 
instructed  to  conduct  the  sale.” 

From  this  it  appears  that  no  single  one  of  the  Commissioners 
was  present  at  the  sale;  that  it  had  been  arranged  with  their  at- 
torney, Charles  L.  Walker,  of  Rock  Island,  so  to  conduct  the  sale; 
that  Charles  R.  Walker,  of  Rock  Island,  was  not  present  at  the 
sale;  that  he  gave;  no  instructions  regarding  the  sale;  that  there- 
upon another  employe  of  the  Commissioners,  Leon  McDonald,  in- 
structed a third  employe,  John  M.  Snyder,  which  Snyder  accord- 
ingly did.  The  invalidity  of  such  a sale  is  too  clear  for  argument. 
The  Commissioners  absented  themselves.  They  had  no  power  to 
delegate  the  making  of  the  sale ; and,  indeed,  there  is  no  evidence 
that  they  sought  to  do  so;  but  it  was  assumed  by  the  minor  em- 
ployes that  the  attorney  would  act.  He  absented  himself,  and  (it 
is  said  by  the  assistant  secretary)  delegated  his  assumed  authority 
by  a telephone  to  the  superintendent;  the  superintendent  did  not 
shoulder  the  responsibility,  but  delegated  it  to  the  assistant  secre- 
tary. The  sale  by  the  assistant  secretary  was  void. 

There  was  no  power  to  delegate. 

A delegated  authority  cannot  he  re-delegated.  (2.  Co.  Inst.,  597, 
Story,  Agency,  Sec.  13.) 

(1842)  Mason  v.  Wait,  4 Scam.,  127  (Guardian’s  sale  un- 
der special  legislative  authority,  made  by  Guardian’s 
attorney  in  fact,  invalid.) 

(1874)  Sebastian  v.  Johnson,  72  111.,  282  (Administratrix’ 
sale,  made  by  an  agent  or  auctioneer  whom  she  engaged 
for  the  purpose,  but  in  her  absence  sale  held  void  and  re- 
lief denied  to  purchaser.) 

(1816)  Heyer  v.  Leaves,  2 Johnson’s,  Ch.  154  (Master’s 
sale  by  deputy  master,  invalid.) 

(1850)  Poivell  V.  Tuttle,  3 N.  Y.,  396  (Two  loan  commis- 
sioners authorized  to  sell;  sale  by  one  invalid.) 

(1857)  Moss  V.  Peary,  2 Pat.  & Heath  (Va.),  483  (Sale  by 
one  of  two,  the  other  being  absent,  invalid.) 

(1876)  Noland  v.  Noland’s  Admr.,  75  Ky.,  426  (Court 
Commissioner;  sale  by  auctioneer  in  absence  of,  in- 
valid.) 

(1861)  Cheatham  v.  Phillips,  23  Ark.,  8C  (Swamp  Land 
Commissioners;  sale  by  sub-commissioner  invalid.) 


77 


(1894)  h*i}(‘ kerf 011  v.  (h’imc,s,  8 Wash.,  47)1  ((.\)uiity  (joininis- 
sioners;  sale  au(*tiorieer 's  servi(*.es  uiiauthorizcHl.) 

(18()4)  White  v.  Lester,  40  N.  Y.  (1  Keyes),  .410;  (Loan 
eoinmisisoners ; sale  hoik  being  present;  book  entries 
by  one,  valid.) 

That  (Commissioners  may  employ  anetioneer  if  lie  acts  in  their 
immediate  presence  and  under  tlieir  present  control.  See  Blossom 
v.R.  Co.,  3 Wall.,  205.  " 

The  rule  is  well  stated  by  the  NeAv  York  Court  of  Appeals  (Har- 
ris, J.)  in  Powell  v.  Tuttle,  3 Comstock  (N.  Y.),  396: 

‘^The  sale  took  place  at  the  time  and  place  appointed.  No 
l)ersons  were  present  except  George  Kingsbury,  one  of  the 
Commissioners,  and  the  defendant,  Stephen  Tuttle.  Kings- 
bury offered  the  premises  for  sale  pursuant  to  notice,  and  Tut- 
tle became  the  purchaser  for  $468.50,  the  amount  due  upon  the 

mortgage  for  principal  and  interest. 
*#*##*****# 

‘^Several  other  parcels  of  land  were  advertised  by  the  Com- 
missioners to  be  sold  at  the  same  time,  but  the  sale  of  these 
parcels,  with  one  exception,  was  postponed  until  the  afternoon 
of  the  same  day.  On  a subsequent  day  both  Commissioners 
executed  to  Tuttle  a deed  of  the  premises  as  the  purchaser 
thereof  at  the  sale,  and  at  the  same  time  Tuttle  delivered  to 
the  Commissioners  his  mortgage  upon  the  same  premises  for 
the  amount  of  the  principal  due  upon  the  Everitt  mortgage, 

and  paid  the  interest  and  costs. 

*********** 

‘^HARRIS,  J.  The  first,  and  as  it  appears  to  me  the  vital 
question  in  this  case  is,  whether  the  power  to  sell  conferred  by 
statute  upon  the  Commissioners  has  been  well  executed.  But 
none  of  the  Commissioners  was  present  at  the  sale.  The  plain- 
tiffs insist  that  the  power  of  sale  is  vested  in  the  Commission- 
ers jointly,  and  that  in  the  absence  of  one,  no  valid  sale  could 
be  made  by  the  other.  On  the  other  hand,  the  defendants  con- 
tend that  the  sale,  being  a ministerial  act,  one  Connnissioner 
might  delegate  to  the  other  the  power  to  sell,  and,  in  this  in- 
stance, the  execution  of  the  deed  to  the  purchaser  is  evidence 
of  such  delegation,  and  a ratification  of  the  sale  by  the  absent 
Commissioner.  Whether  the  commissioner  acted  discreetly 
in  making  the  sale,  or  whether  he  should  have  kept  the  sale 
open,  as  he  did  in  other  instances,  until  afternoon,  is  not  now 
to  be  considered.  There  is  no  allegation  of  fraud  or  collusion 
in  the  bill. 

‘^The  sole  (luestion  is,  whether  the  Commissioner  had  au- 
thority to  make  the  sale  ivihen  and  as  he  did. 

“In  the  terms  of  the  statute  itself,  there  is  certainly  nothing 


wliieli  rcHjiiires,  or  indeed  seems  to  favor,  the  constructfoii  for 
which  the  defendants  contend,  and  wliich  is  necessary  in  order 
to  sustain  this  sale.  The  dOth  section  of  the  act  {Sess.  Laivs 
of  1837,  p.  129),  declares  that  upon  the  neglect  pf  the  borrower 
to  pay  the  yearly  interest,  etc.,  the  Commissioners  sliall  be 
seized  of  any  absolute  and  indefeasible  estate  in  fee  in  the 
lands,  but  the  mortgagor,  his  or  her  heirs  or  assigns,  shall  be 
entitled  to  retain  possession  of  the  premises  until  the  first 
Tuesday  of  February  thereafter,  and  to  redeem  the  same  as 
provided  in  the  act.  The  31st  section  requires  the  Commis- 
sioners to  advertise  such  premises  to  be  sold  on  the  first  Tues- 
day of  February  then  next,  at  the  court  house.  The  32d  sec- 
tion directs  the  Commis*sioners  to  expose  the  lands  described 
in  the  mortgage  foreclosed,  to  sale  at  public  vendue,  on  the 
first  Tuesday  of  February,  and  upon  such  sale  to  convey  the 
lands  to  the  highest  bidder.  By  the  34th  section  the  Commis- 
sioners are  authorized  at  any  time,  before  the  premises  are 
actually  struck  off,  to  postpone  the  sale  at  their  discretion,  for 
the  purpose  of  inquiring  into  the  value  of  the  premises.  In 
all  these  provisions  relating  to  the  sale,  as  well  as  in  every 
other  provision  of  the  act,  involving  the  powers  and  duties  of 
the  Commissioners,  the  Legislature  seems  to  have  contem- 
plated the  presence  and  participation  of  both  Commissioners 
in  every  official  act.  I think  it  very  clear  that  it  was  intended 
to  secure,  in  every  essential  act  to  be  performed  by  the  Com- 
missioners, their  joint  deliberation  and  united  judgment. 
When  a duty  merely  mechanical  is  to  be  performed,  as  in  the 
case  of  fixing  up  the  advertisement  of  sale,  the  Commissioners 
are  authorized  to  cause  such  duty  to  be  performed.  But  when 
any  act  is  to  be  done,  which  involves,  in  any  degree,  the  exer- 
cise of  discretion,  it  seems  to  have  been  the  policy  and  purpose 
of  the  Legislature  to  secure  the  benefit  of  the  joint  exercise  of 
such  discretion  by  the  Commissioners  themselves.  It  is  a fa- 
miliar rule  of  law  that  a special  authority  must  be  strictly 
pursued.  When  such  authority  is  prescribed  by  statute,  and 
when,  in  its  exercise,  it  operates  to  divest  the  citizen  of  his 
property,  courts  cannot  be  too  sedulous  in  confining  it  within 
the  boundaries  which  the  Legislature  have  thought  fit  to  pre- 
scribe. At  this  day  and  in  this  country,  especially,  the  protec- 
tion of  private  rights  demands  this  safeguard;  and  he  who 
will  review  the  adjudications  of  our  courts  involving  this  prin- 
ciple, will  be  interested  to  observe  with  what  uniformity  and 
increasing  jealousy  the  exercise  of  such  a power  has  been  re- 
stricted to  its  own  specified  limits.  {Sherwood  v.  Beade,  7 
Hill,  431 ; Striker  v.  Kelly,  id.  9;  Same  case  in  error,  2 Denio, 
323;  Sharp  v.  Speir,  4 Hill,  76;  Downing  v.  Bugar,  21  Wend.. 
178.)  In  the  latter  case,  Cowcn,  J.,  says,  ^The  rule  seems  to 
be  well  established,  that  in  the  exercise  of  a public  as  well  as 


1\) 


privato  auiliority,  whether  it  l)(‘  [niiiisi(a-ial  oi*  judicial,  (ill 
the  persons  to  whom  it  is  eommitted  must  (‘ontei*  and  acd.  to- 
i>-ether,  unless  there  t)e  a i)rovision  that  a less  numher  may 
[)roeeed.’  ” 

Cliaiu'ellor  Kent,  still  earlier,  tiad  stated  the  rule  in  strong  terms 
as  to  judieial  sales,  in  llei/er  v.  Deaves,  2 Johnson’s  Oh.,  154,  thus: 

“The  Chancellor.  Tlie  master,  l)eing  sick,  did  not  at- 
tend the  sale,  but  deputed  a competent  agent,  who  attended 
and  sold  the  land.  The  objections  to  the  fairness  and  regu- 
larity of  the  sale  are  denied  and  completely  removed  except 
the  objection  that  the  sale  was  not  made  by  a master  who 
was  ])resent.  The  statute  says  (Laws,  Sess.  36,  Oh.  95,  Sec. 
11),  ‘that  all  sales  of  mortgaged  premises,  under  a decree, 
shall  be  made  by  a master’;  and  I do  not  think  it  proper  to 
allow  such  a trust  as  this  to  be  subject  of  a special  deputation. 
It  appears,  by  one  of  the  affidavits,  that  the  master  in  whose 
name  the  mortgaged  premises  were  sold,  was,  at  the  time,  in 
the  city  of  New  York,  about  90  miles  from  the  place  of  sale. 
If  he  had  been  present,  and  had  employed  an  auctioneer  or 
crier,  it  would  still  have  been  his  sale,  and  the  parties  would 
have  had  all  the  benefits  of  his  superintendence  and  judg- 
ment. But  to  allow  such  a sale  as  this  to  stand,  would  open 
the  door  to  a very  lax  and  dangerous  practice.  The  statute 
intended  that  such  sales  should  be  under  the  immediate  di- 
rection of  a known  and  responsible  public  officer.  An  under 
or  deputy-master  is  not  an  officer  known  in  law.” 

So  in  Cheatham  v.  Phillips,  23  Ark.,  80,  the  Supreme  Court  of 
Arkansas  (English,  C.  J.),  said: 

swamp  lands  belonged  to  the  State,  by  grant 
from  Congress.  The  title  to  them  was  not  in  the  commission- 
ers; they  derived  their  power  to  sell  them  from  the  statutes, 
and  had  to  follow  their  requirements  in  order  to  make  valid 
sales.  There  was  no  provision  of  the  statutes  authorizing  the 
Board  of  Commissioners  to  appoint  deputies  or  sub-commis- 
sioners, and  to  delegate  to  them  the  power  of  selling  the  swamp 
lands,  and  they  could  not,  without  authority  of  law,  transfer 
to  other  persons  the  power  of  sale  entrusted  by  the  legislature 
to  them.” 

The  other  cases  present  the  rule  in  language  equally  strong. 

It  was  suggested  at  the  bar  of  the  trial  court  that  a different 
rule  should  be  applied  to  Commissioners’  sales  from  that  applied 
to  judicial  sales.  This  was  a misapplication  of  the  doctrine  that 
judicial  powers  cannot  be  delegated.  It  is  true  that  judicial  powers 
cannot  be  delegated,  and  with  stronger  reason,  if  possible,  it  is 


80 


true  that  legislative  power  cannot  be  delegated.  The  legislature 
had  tlie  power  to  sell  tliese  lands  or  order  their  sale.  Tliev  did 
order  or  authorize  their  sale  in  a certain  manner  l)y  certain  officers 
with  (‘ertain  i*estrictions. 

If  a court  commissioner  or  master  wrongfully  assumed  to  dele- 
gate his  })Ower  to  a third  person,  the  court  could  the  more  readily 
set  that  sale  aside  because  the  commissioners  are  compelled  to 
make  report  to  the  court  and  obtain  confirmation.  The  very  ab- 
sence of  this  step  from  the  commissioners’  sale  makes  it  the  more 
necessary  that  the  power  should  be  rightfully  exercised  by  the 
statutory  officers  in  the  first  instance. 

Functions  to  be  exercised  by  county  officials  cannot  without 
special  authority  given  by  law,  be  delegated  to  strangers  wdth 
power  to  act  in  their  stead.” 

(1875)  Jackson  Co.  v.  Brush,  77  111.,  59  at  65. 

(Tlie  above  was  a case  of  county  bonds  in  aid  of  railroad  put  in 
escrow^  wfitli  trustees  for  delivery  by  them  when  they  find  conditions 
of 'county  subscription  complied  with;  held  that  power,  county 
commissioners  to  deliver  bonds  or  find  conditions  complied  with 
cannot  be  delegated.) 


VI. 

THE  DEED  OF  THE  EIPARTAN  TRACT  IS  VOID. 

1.  We  have  seen  (IV,  supra)  that  the  sale  wms  void.  The  deed 
which  professedly  simply  carries  the  sale  into  effect  necessarily 
falls  with  the  sale.  But  the  deed  presents  other  infirmities  also. 

2.  It  expressly  renews  the  void  covenants  of  the  canal  com- 
missioners in  the  void  flowage  contract,  and  is  therefore  void. 

The  deed  above  referred  to,  dated  January  6,  1905,  from  the 
Canal  Commissioners  to  Griswold,  is  made  with  a reservation 
which  is  in  the  following  words,  to  wit : 

” Subject,  however  to  the  terms,  conditions  and  provisions 
of  the  flowage  contract  and  lease,  made  to  said  Harold  F.  Gris- 
wold and  bearing  date  September  2,  1904,  which  terms,  condi- 
tions and  provisions  still  remain  in  full  force  and  shall  he 
fidly  kept  and  performed/’ 

The  flowage  contract  itself  is  illegal  and  void.  The  clause  quoted 


81 


from  the  deed  above  is  a re-affirmation  by  tlie  (/anal  Commissioners 
of  tliat  illeg'al  and  void  eontraet  and  a covenant  that  its  ‘Herrns, 
conditions  and  provisions  still  remain  in  full  force  and  shall  be 
fully  kept  and  performed.”  This  danse  is  a part  of  the  granting 
danse  of  the  deed.  It  is  an  express  covenant  by  the  Canal  Com- 
missioners that  their  former  illegal  contract  shall  be  enforced.  It 
is  the  introduction  of  the  illegality  of  the  flowage  contract  into  the 
deed.  It  is  a part  of  the  consideration  for  which  the  purchase 
money  of  the  deed  is  paid  and  comes  within  the  rule  laid  down  in 
the  cases  heretofore  cited  that  if  any  part  of  the  consideration  of 
the  contract  is  illegal,  the  entire  contract  fails. 

3.  It  is  subject  to  the  reservation  of  the  fioivage  right  ivhich 
{because  the  fioivage  contract  is  void)  never  left  the  Canal  Com- 
missioners. 

The  effect  of  the  clause  above  quoted  from  the  deed  is  to  defeat 
any  claim  of  right  under  the  deed  in  the  grantee  to  flow  the  prop- 
erty. The  deed  of  the  riparian  tract  conveys  ivhat  was  left  after 
the  right  of  fioivage  had  previously  been  disposed  of  by  the  flowage 
contract.  What  was  left  (if  that  contract  was  valid)  was  the  Utley 
minus  the  right  of  fioivage.  Therefore  the  grantee  as  grantee  ac- 
quired no  right  of  flowage. 

The  provisions  of  the  flowage  contract  and  lease  by  the  express 
terms  of  this  deed  are  to  remain  in  full  force  as  a reserve  provision 
against  this  deed,  and  if  the  flowage  contract  and  lease  are  valid 
then  the  holder  of  the  flowage  contract  is  the  one  and  only  one  who 
has  the  right  to  flood  the  lands,  and  as  that  flowage  contract  is 
illegal  and  void  and  conveyed  no  rights  to  the  grantee  in  such  con- 
tract, as  held  by  Judge  Mack,  then  (^uery:  AVhere  is  the  right 
of  flowage?  Answer:  It  must  remain  in  those  who  attempted 
to  grant  it,  viz. : the  Canal  Commissioners  for  the  benefit  of  the 
State. 

(The  lease  also  is  made  subject  to  the  flowage  contract ; and 
the  provisions  of  the  flowage  contract  are  expressly  reserved 
from  the  lease.  The  lessee  takes  no  right  of  flowage  as  lessee. 
That  right  remains  in  the  grantee  of  the  flowage  contract,  but 
as  the  flowage  contract  is  illegal  and  void  and  no  rights  pass 
from  the  Canal  Commissioners  by  virtue  of  it,  then  it  still  re- 
mains in  the  (^anal  Commissioners  even  against  the  holders  of 
the  lease,  and  therefore  from  any  construction  that  can  be 


81^ 


put  upon  it  the  ri^iit  of  flowa^e  lias  not  passed  from  the  Canal 
(^ouiiuissionei-s  and  no  right  of  dowage  has  passed  to  the  lessee 
in  the  lease  nor  to  the  grantee  in  the  deed.) 

vrr. 

THE  ENTIRE  SERIES  OF  CONTRACTS  IS  AGAINST  PUBLIC  POLICY  AND  VOID. 

The  illegality  cannot  be  purged  from  the  do  wage  contract,  the 
lease,  the  sale  and  the  deed  and  leave  a valid  subsisting  contract. 

The  entire  series  of  contracts  with  Munroe  (in  the  name  of  Gris- 
wold) were  the  outgrowth  of  a determined  effort  on  his  part  to 
acquire  everything  which  could  he  acquired  at  this  locality  from  the 
Canal  Commissioners.  The  negotiations  began  with  the  proposal 
by  Munroe  in  the  name  of  Griswold  to  buy,  and  the  Canal  Com- 
missioners to  sell,  and  led  to  the  advertisement  of  the  property 
for  sale.  When  the  time  for  sale  came  no  Commissioner  was 
present  hut  their  clerk  announced  that  the  sale  was  indednitely 
postponed. 

At  the  next  meeting  of  the  Commissioners  the  Commissioners 
voted  that  the  property  be  withdrawn  from  sale  because  it  could  be 
leased  to  hetter  advantage,  and  a contract  to  dow  in  perpetuity 
the  riparian  tract  (54.5)  acres  (the  so-called  17-acre  tract)  and 
the  90-foot  strip  for  several  miles  in  length  was  granted  to  Munroe 
without  any  advertisement  or  notice. 

Then,  a lease  for  twenty  years  with  a renewal  clause  for  twenty 
more  was  let  unto  him  subject  to  the  dowage  contract. 

Then  the  pole  line  contract  to  maintain  a line  of  trolley  poles  25 
miles  long  upon  the  tow-path  w'as  given  to  him. 

Then  the  property  w^as  advertised  for  sale  subject  to  these  rights. 

The  sale  was  made  not  by  the  Board  but  by  an  employe  in  the 
absence  of  every  and  any  member  of  the  Board,  and  then  the  deed 
was  given  which  renewed  the  covenants  of  the  dowage  contract. 

Then  the  Commissioners  leased  him  the  Kankakee  Feeder. 

Each  one  of  the  transactions  was  illegal. 

The  dowage  contract  was  a grant  in  perpetuity,  wdthout  com- 
petitive bidding,  and  illegal,  and  in  the  teeth  of  the  statute. 


83 


The  lease  assumed  to  give  a right  of  renewal  wliieh  was  })eyond 
the  power  of  the  Commissioners  and  was  illegal. 

The  sale  was  conducted  by  a delegate  or  employe  of  the  Com- 
missioners, who  could  not  delegate  their  power  and  was  illegal. 

The  lease  and  sale  were  made  expressly  subject  to  the  illegal 
perpetual  contract. 

The  covenant  in  the  deed  that  the  provisions  of  the  void  flowage 
contract  shall  still  be  performed  is  itself  illegal. 

The  lease  of  the  feeder  covered  an  integral  part  of  the  canal. 

And  all  were  transacted  with  the  purpose  on  the  part  of  the 
grantee  to  defeat  the  express  policy  of  the  law  to  secure  free,  open 
and  equal  bidding,  and  to  obtain  special  and  exclusive  advantages 
to  the  grantee.  All  were  transacted  for  the  purpose  of  evading  the 
statute  on  the  leasing  of  water-power,  and  for  the  purpose  of 
maintaining  a series  of  works  inherently  dangerous  to  the  canal. 

All  were  so  made  as  to  enable  the  grantee  to  assign  and  escape 
responsibility. 

The  illegality  runs  through  all  the  contracts  and  all  must  fall  to- 
gether. 

PUBLIC  POLICY  OF  THE  STATE  AS  TO 'THE  CANAL  AND  CANAL  LANDS. 

It  is  the  policy  of  the  State: — 

(1)  To  maintain  the  canal  in  its  integrity  and  allow  no  part  of 
it  to  be  alienated. 

(2)  To  allow  none  of  the  canal  lands,  the  bounty  of  the  nation  to 
be  sold  except  after  public  advertisement,  at  public  auction  .to  the 
highest  bidder: — 

(3)  To  secure  free,  open  and  equal  bidding  at  such  sale. 

(4)  To  have  that  sale  conducted  by  the  sworn  officer  of  the  State, 
appointed  for  the  purpose. 

(5)  To  allow  no  water-])ower,  the  x)roperty  of  the  canal  to  be  per- 
manently alienated  or  leased  for  more  than  20  years. 

(6)  To  allow  no  such  water-])ower  to  be  leased  even  for  20  years 
except  after  public  advertisement  at  public  auction  to  the  highest 
bidder. 


84 


(7)  To  secure  free,  open  and  e(|ual  bidding  at  such  letting  of 
\vater-])o\ver. 

(8)  To  allow  none  of  the  canal  lands  to  he  leased  for  more  than 
20  years. 

(9)  To  allow  no  private  grants  in  perpetuity  of  rights  in  the 
canal  property. 

(10)  To  allow  no  private  interests  to  encroach  upon  and  imperil 
the  canal. 

Each  of  these  principles  of  public  policy  was  violated  by  the 
contracts  held  by  appellee. 

The  candl  lands,  the  gift  of  the  nation  to  the  State  to  aid  in  con- 
structing and  maintaining  the  water  way  are  a public  trust  of 
which  the  State  is  trustee.  The  restrictions  in  the  canal  laws  were 
enacted  to  preserve  this  trust.  The  Commissioners  as  agents  of 
the  State,  like  the  Roman  Consuls  of  old,  should  take  care  that  the 
State  suffers  no  harm. 

In  this  instance  they  have  first  let  the  feeder  go  to  decay,  then 
contracted,  leased  and  sold  the  canal  property,  not  only  against 
the  interest  of  the  State,  but  in  disregard  of  the  positive  restric- 
tions of  the  statute. 

1.  CONTKACTS  VIOLATING  POLICY  OF  THE  STATE  AEE  VOID GENERAL 

PRINCIPLES. 

These  contracts  are  against  public  policy.  The  law  upon  this  is 
well  summarized  in  the  following  authorities : 

^‘But  if  such  contract  bind  the  maker  to  do  something  op- 
posed to  the  public  policy  of  the  State  or  Nation,  or  conflicts 
with  the  wants,  interests,  or  prevailing  sentiment  of  the  people, 
or  our  obligations  to  the  world,  or  is  repugnant  to  the  morals 
of  the  times,  it  is  void,  how^ever  solemnly  the  same  may  be 
made.” 

Greenhood  on  Public  Policy,  p.  1,  Rule  11. 

‘^We  may  take  it  as  well  settled  that,  in  the  law  of  contracts, 
the  first  purpose  of  the  courts  is  to  look  to  the  welfare  of  the 
public;  and  if  the  enforcement  of  the  agreement  would  be 
inimical  to  its  interests,  no  relief  could  be  granted  to  the  party 
injured,  and  even  though  it  might  result  beneficially  to  the 
party  who  made  and  violated  the  agreement.” 

Greenhood,  p.  2. 


85 


‘‘  Ml  is  tlio  duty  of  all  courts  of  justi(*o  to  kco})  their  eye 
steadily  u[)ou  the  interests  of  the  public,  even  in  tlie  adminis- 
tration of  communicative  justice;  and  wJien  they  find  an  ac- 
tion is  founded  upon  a claim  injurious  to  the  public,  and 
which  has  a bad  tendency,  to  give  no  countenance  or  assist- 
ance in  fora  civili/ 

Id.,  p.  2,  citing  Crawford  v.  Wick^  18  Ohio  St.,  190,  20-1-. 

‘‘The  question  of  the  validity  of  the  contract  does  not  de- 
pend upon  the  circumstance  whether  it  can  be  shown  that 
the  public  has  in  fact  suffered  any  detriment,  but  whether  the 
contract  is,  in  its  nature,  such  as  might  have  been  injurious 
to  the  public.  It  matters  not  that  any  particular  contract  is 
free  from  any  taint  of  actual  fraud,  oppression,  or  corrup- 
tion. The  law  looks  to  the  general  tendency  of  such  con- 
tracts.’^ 

Id.,  p.  5,  citing  IlolJoday  v.  Patterson^  5 Ore.,  177,  180; 

Richardson  v.  Crandall,  48  N.  Y.,  343. 

“And  any  contract  made  for  the  purpose  of  giving  effect 
to  any  agreement  within  Rule  II,  (i.  e.,  void),  or  given  in 
consideration  of  the  same,  or  of  any  contract  so  given  or 
made,  or  directly  having  its  origin  therein,  or  based  thereon, 
or  growing  immediately  out  of  the  same,  although  the  maker 
thereof  is  ignorant  of  its  illegal  character,  or  there  be  em- 
braced therein  legitimate  indebtedness,  is  void,  * * 

Id.,  p.  8. 

“It  is  immaterial  that  a contract  appears  on  its  face  to  be 
within  Rule  I (i.  e.,  valid),  if  the  circumstances  surrounding 
tlie  transaction  will  briug  it  within  Rule  II;  or  if  the  contract 
be  only*  made  as  a cover  for  a contract  plainly  within  Rule 
II  (i.  e.,  void),  the  contract  will  be  held  void  although  sucli 
object  may  be  capable  of  proof  by  parol  evidence  only.” 

Id.,  p.  113. 

“The  general  rule  is  that  all  agreements  which  have  for 
their  object  anything  which  is  repugnant  to  the  general  policy 
of  the  common  law  or  contrary  to  the  provisions  of  any 
statute,  are  void  and  will  not  be  enforced.  And  so,  again,  a 
contract  which,  in  its  execution,  contravenes  the  policy  and 
spirit  of  a statute  is  equally  void,  as  if  made  against  its  posi- 
tive provisions.” 

(ruenther  v.  Deivein,  11  la.,  133. 

lAntracts  between  private  parties  are  sustained  as  far  as  pos- 


86 


siblo;  but  this  doeti'ine  lias  no  aiiplication  to  tlie  contracts  of  pub- 
lic*. officters. 

‘‘Statutes  delegating  powers  to  imblic  officers  must  be 
sti'ictly  construed  and  all  parties  interested  must  look  to  the 
statute  for  the  grant  of  power.” 

Dirdericli  v.  Hose,  2:^8  111.,  610,  at  615. 

So  the  liurden  is  on  the  ])arty  who  claims  the  benefit  of  the  con- 
tract wdth  a public  officer  to  show  its  validity.  There  is  no  pre- 
sumption that  it  is  valid.  If  authority  for  it  cannot  be  found 
delegated  by  the  statute,  then  the  contract  must  fall. 

Dement  v.  RoJcher,  126  111.,  174. 

In  this  respect  the  rule  as  to  public  contracts  is  precisely  the 
reverse  of  what  it  is  as  to  private  contracts.  (Ibid.)  And  in 
general  it  may  be  said  that  the  rules  as  to  invalidity  of  contracts 
ore  applied  with  greater  strictness  to  contracts  by  public  officers 
tban  to  those  by  private  individuals.  So,  while  it  may  be  the 
law  that  if  a private  individual  with  a power  to  lease  for  10  years 
made  a lease  for  20  years,  the  lease  would  be  sustained  in  equity 
for  the  10 'years  for  wdiich  he  had  the  power,  no  such  rule  is  -ap- 
plied to  a contract  by  public  officers ; and  the  court  below  expressly 
excluded  this  doctrine  from  any  consideration. 

And  this  applies  with  peculiar  force  to  grants,  or  corporate 
privileges,  or  franchises  in  public  property. 

Jones  V.  Kline,  41  N.  H.,  238. 

State  V.  Garland,  7 Ired.,  49. 

Ohio  ex  rel  v.  Board  of  Public  Works,  36  Ohio  St.,  409. 

Ohio  ex  rel.  v.  Cin.  Cent.  R.  Co.,  37  Ohio  St.,  157. 


2.  THE  COURTS  WILL  RESTRAIX  THE  PERFOEMAXCE  OF  CONTRACTS 
HOSTILE  TO  THE  POLICY  OF  THE  STATE. 

“Equity  will  not  only  refuse  enforcement  of  any  contract 
within  Rule  II  (declaring  such  contracts  void),  but  will  re- 
strain a suit  at  law  thereon,  and  will  order  its  surrender  and 
cancellation  except  when  the  invalidity  thereof  is  apparent 
upon  its  face,  or  when  such  aid  would  encourage  a breach  of 
trust;  and  will  restrain  the  execution  of  all  contracts  which 
are  opposed  to  public  policy  when  the  consummation  of  their 
objects  may  be  thereby  prevented.  * * 

Greenhood,  p.  131. 


87 


Tills  lias  1)0011  appliod  and  oiifoi'c'od  hy  tln^  SuprcniK;  (joiirl  of 
1 lliiiois. 

Ill  State  of  Illinois  v.  Delofield,  8 Paigo’s  Pli.  (N.  Y.)  527,  llio 
Court  (Walworth,  Cli.)  had  before  it  a suit  eonoernin^-  oaiial 
bonds  issued  by  this  State  to  raise  money  under  the  Aet  of  dan- 
uary  9,  188(),  for  the  eonstruction  of  this  very  canal,  it  was  a bill 
by  the  State  of  Illinois  to  enjoin 'a  purcbaser  who  bad  obtained 
possession  of  canal  bonds  (under  a contract  witli  the  agents  of 
the  State,  who  exceeded  tbeir  authority)  from  dealing  with  the 
bonds.  The  bonds  bad  been  delivered  by  the  agents  who  bad 
contracted  with  him  for  the  sale  of  the  interest  bearing  bonds  on 
credit,  for  tbeir  delivery  in  advance,  and  for  deferred  payments 
by  bim  in  instalments  wntbout  interest  on  the  deferred  payments. 

The  sale  was  held  to  violate  the  statute  (1)  because  on  credit 
and  (2)  because  it  amounted  to  a sale  below  par;  and  therefore 
to  be  void;  and  the  State  was  held  entitled  to  recover  its  property 
in  bis  bands,  and  to  an  injunction  restraining  bim  from  any  fnr- 
tber  dealings  with  the  property  wbicli  was  tlie  subject  of  the  con- 
tract. 

The  Chancellor  said: 

‘‘It  is  said,  however,  that  the  State  of  Illinois  has  con- 
firmed the  acts  of  the  agents  who  made  these  sales;  and  that 
it  is  now  too  late  to  rescind  the  agreements  as  having  been 
made  without  authority.  But  no  officer  or  agent  of  the  State 
bad  any  power  to  make  or  to  authorize  the  making  of  such 
contracts  originally;  and  of  course  none  of  them  bad  the 
l)ower  to  confirm  them  afterwards.  For  no  person  can 
confirm  an  authorized  agreement,  made  by  another,  un- 
less be  bad  himself  the  power  to  autboilze  the  making  of 
such  an  agreement.  As  the  sovereign  power  of  the  State,  by 
a Legislative  act,  bad  prohibited  any  of  its  officers  or  agents 
from  selling  its  stocks  below  tbeir  ]);n‘  value,  it  follows,  of 
course,  that  nothing  short  of  a law  of  the  State,  proceeding 
from  the  same  authority,  can  legalize  such  a transaction. 

“The  contract  for  the  delivery  of  the  bonds  being  wholly  un- 
authorized, and  there  having  been  no  subsequent  ratification  by 
the  legislative  power  of  the  State  of  Illinois,  or  by  any  offi- 
cer or  agent  who  liad  the  iiower  to  ratify  these  illegal  sales 
of  the  stocks,  an  injunction  must  l)e  granted  as  praved  for.’’ 
(pp.  541-2-8.) 


88 


'rii(‘  s<Mn(‘  (l()('triiu‘  Tuidoi'lios : 

Inter  Ocean  Pnh.  Co.  v.  Assocmted  Press,  184  111.,  438. 

Cook  (Uynnty  Brick  Co.  v.  Lahahn  Brick  Co.^  92  TIL,  App., 
520. 

Baskett  v.  Moss,  115  N.  Car.,  448. 
and  cases  of  like  class. 

Tlie  pnldic  policy  wliicli  requires  free,  open  and  equal  competi- 
tion in  l)idding  for  canal  lands  is  as  sacred  as  the  public  policy 
which  forbids  contracts  in  restraint  of  competition  in  private 
property. 

The  Labalin  Brick  Company  case  was  a case  where  the  owner  of 
a brick  plant  had  in  common  with  forty-four  other  owners  of 
brick  plants  leased  its  property  to  a brick  company  which  never 
made  any  brick,  but  simultaneously  subleased  back  to  each  owner 
the  property  of  which  it  had  so  received  a lease,  the  sublease  pro- 
viding that  the  owner  in  receiving  its  property  back  would  pay  a 
rental  therefor  of  $1.50  a thousand  on  all  brick  produced.  The 
court  finds  that  ‘Hhe  parties  diligently  concealed  and  kept  secret 
the  real  consideration  and  purpose  of  the  execution  of  the  instru- 
ments,’’ from  which  ^4t  may  reasonably  be  inferred  that  such 
purpose  was  one  which  will  not  bear  legal  scrutiny.” 

The  appellee  got  tired  of  its  illegal  relation,  abrogated  and  re- 
scinded its  agreement  and  held  its  property  as  of  its  own  right 
adversely  to  the  trust.  It  threw  off  all  relations  to  the  trust  and 
stood  upon  its  rights.  The  trust  threatened  to  enter  and  take 
possession  under  the  terms  of  the  *Bease.”  The  court  rightly  held 
that  the  doctrine  of  in  pari  delicto  had  no  application  to  such  a 
case,  and  granted  the  relief  by  enjoining  the  seizure. 

In  McGuire  v.  Ashby,  1 Band.  (Va.),  76,  an  injunction  was 
granted  to  prevent  a sale  under  a deed  of  trust  given  for  the  bene- 
fit of  an  unchartered  bank,  and  therefore  void  under  the  Virginia 
statutes.  The  court  in  this  case  said  that  a court  of  equity,  as 
well  as  a court  of  law,  would  interfere  to  prohibit  the  effect  of 
contracts  made  in  violation  of  laws  enacted  for  the  public  good. 

In  Cone  v.  Russell,  48  N.  J.  Eq.,  208;  21  Atl.,  847,  an  injunction 
was  allowed  against  the  use  of  a proxy  irrevocable  for  five  years 
to  vote  corporate  shares  of  stock,  executed  in  pursuance  of  an 


89 


aj^Toouioiii  by  the  one  to  wlioni  tlie  proxy  was  ij^iven  to  so  vote  the 
shares  that  one  of  those  giving  the  proxy  should  he  (continually 
employed  ns  manager  of  tlie  eorporation  at  a specified  salary. 
The  (‘oiirt  in  this  case  lield  that  the  complainant  was  seeking  to 
undo,  as  far  as  possible,  the  wrong  done  by  virtue  of  the  illegal 
agreement  and  that  in  such  case  the  maxim  In  pari  delicto  potoir  est 
condito  defendentis  did  not  apply. 

3.  Where  the  leading  part  of  a contract  or  series  of  contracts 
for  a common  purpose  is  contrarg  to  puhlic  policy  no  part  of  such 
contracts  n'iU  he  upheld. 

^^All  contracts  made  in  violation  of  an  express  statutory* 
provision  are  inoperative  and  void.’’ 

Penn  v.  Bornman,  102  TIL,  523-529. 

In  that  case  the  illegality  consisted  in  a contract  of  guaranty  by 
a bank  director  of  repayment  of  its  loan  in  an  amount  equal  to 
the  amount  of  his  stock  in  the  bank,  to  a corporation  of  which  he 
was  president,  the  bank  charter  containing  a provision  that  no 
director  should  be  indebted  to  the  bank  to  an  amount  greater  than 
75  per  cent  of  the  amount  of  bank  stock  held  by  him. 

When  any  part  of  the  consideration  for  a promise  is  illegal  the 
entire  contract  is  void. 

‘‘Whenever  the  consideration,  which  is  the  ground  of  the 
promise  or  the  promise  which  is  the  consequence  or  effect 
of  the  consideration  is  unlawful,  the  whole  contract  is  void.” 

Broom’s  Legal  Maxims,  723, 

Norton  v.  Simms,  Hobart,  12c. 

The  promise  to  give  the  renewal  was  illegal.  It  in  turn  was 
consideration  for  the  promises  by  the  lease. 

It  is  void  and  the  entire  lease  is  void. 

A lease  from  the  owner  of  fiats  in  a cove  on  tidal  waters  is  void 
which  authorizes  the  lessee  to  dam  u])  without  legislative  sanction 
the  mouth  of  the  cove  during  winter  months,  let  it  fill  with  fresh 
water  and  cut  the  ice  that  forms  thereon,  as  it  authorizes  an  illegal 
act. 

Dyer  v.  Curtis,  72  Me.,  181. 


90 


4.  The  court  will  not  prune  and  pare  off'  from  this  series  of 
vicious  contracts,  their  leading  features,  and  save  the  balance  and 
then  give  effect  to  the  vicious  purpose  by  indirection. 

Oil  the  subject  of  the  attempted  division  of  tlie  lease  into  two 
contracts,  the  case  of  Clark  v.  Baker,  5 Mete.,  452,  is  instructive. 

d'he  court  tliere  said: 

“If  the  contract  is  entire,  if  it  be  one  bargain,  ‘then  it  mat- 
ters not  if  tliere  be  one  or  many  articles,  and  though  each  may 
have  an  ai)])ropriate  price,  in  the  one  case  the  vendor  might 
have  been  unwilling  to  sell  one  ])ortion  witliout  selling  the 
whole;  in  another,  the  buyer  might  not  be  walling  to  take  a 
part,  unless  he  could  have  the  wdiole.  ’ 

“To  the  same  effect  is  Norrington  v.  Wright,  114  U.  S., 
188,  and  in  Coos  Bay  JVagoji  (h).  v.  Crocker,  4 Federal,  577,  it 
is  said:  ‘Whether  a contract  is  entire  or  severable  depends 
upon  the  intention  of  the  parties  to  be  gleaned  from  all  the 
facts  and  circumstances.’  ” 

THE  LEASE,  EXHIBIT  B,  TAKEN  BY  ITSELF,  IS  ONE  ENTIRE  BARGAIN  AND 
CONTRACT. 

The  Court  below^  rightly  held  that  the  fiowage  contract  and  re- 
new’al  clause  in  the  lease  w^ere  both  void ; but  that  the  rest  of  the 
lease  could  be  carved  out  and  considered  as  standing  alone,  and 
that  so  considered  the  lease  was  valid;  and,  next,  that  the  court 
could  look  to  the  void  contract  to  ascertain  the  purpose  of  the 
lease  (viz.,  water-power  fiowage)  and  extracting  that  purpose 
from  the  void  contract  could  apply  it  to  the  lease,  and  make  the 
lease  a valid  20-year  fiowage  lease. 

AVe  respectfully  submit  that  this  was  error.  We  submit  that 
this  is  inconsistent  and  would  operate  to  give  validity  to  the  ille- 
gal fiowage  contract  by  indirection.  A¥e  submit  that  the  lease  is 
not  to  be  separated  from  its  own  contents. 

The  lease  here,  with  is  illegal  renewal  clause,  and  its  illegal  use 
of  part  of  the  Kankakee  Feeder  in  Sections  5 and  31,  and  its  ille- 
gal demise  of  the  90-foot  strip  to  the  tow-path  edge,  w^as  all  one 
bargain. 

The  lease  is  one  single  entire  contract,  embracing  the  wdiole  of 
what  the  Commissioners  gave  and  covenanted  on  one  side  and  the 
wdiole  of  what  the  lessee  gave  and  covenanted  (as  stated  above) 
on  the  other. 


1)1 


Tho.  (‘oiisont  by  ilie  lessor  to  mII  the  terms  of  lli(‘  l(!{is(‘  was  eon- 
s'ulei-atioii  tor  Ibe  eoiisent  ])y  the  lessee  to  tlie  same  t(‘rms. 

'^riie  renewal  danse  was  part  of  the  i)nrpose  of  tlie  lease.  It  is 
not  permissible  for  the  lessee’s  assignee  now  to  say,  ^^We  wonbl 
have  taken  the  20-year  lease  without  any  flowage  contract  and  with- 
out the  renewal  dause.” 

No  more  could  they  say,  would  have  taken  the  lease  of  the 
riparian  tract  without  the  feeder  and  without  the  90-foot  strip.” 

Viewed  as  a consideration  for  the  promises  by  the  lessee,  the 
renewal  option  is  itself  a consideration'  which  is  illegal  and  falls 
within  the  rule  that  if  any  part  of  the  consideration  upon  which 
the  promise  rests  is  illegal,  all  his  promises  fail,  i.  e.,  the  contract 
is  void. 

Tohey  v.  Robinson,  99  111.,  222. 

Estate  of  Ramsay  v.  Whithecb,  183  111.,  550. 

B'outhart  v.  Congdon,  197  111.,  349. 

In  the  latter  case,  a broker  carried  on  business  for  several  years 
with  a customer,  and  finally  had  an  accounting  and  took  notes  in 
settlement  of  the  account.  The  notes  included,  beside  other  items 
Sis  to  which  no  Question  was  raised,  charges  for  commission  as 
broker.  The  broker  had  not  obtained  a license.  He  was  there- 
fore held  not  qualified  to  render  lirokerage  service  or  earn  com- 
missions. Therefore  the  notes  wliich  may  have  included  large 
cash  advances  were  held  totally  void. 

In  Critidifield  v.  Rerimidez  Asphalt  Paving  Co.,  174  III.,  466,  the 
contract  provided  for  paying  a contingent  fee  for  promoting  the 
passage  of  a paving  ordinance.  The  Court  recognized  that  part 
of  the  services  and  expenses  of  such  promotion  were  and  might  be 
legitimate,  but 

There  are  some  salient  features  of  this  agreement  which 
stamp  it  as  being  against  public  policy.  * * * makes  no 

difference  whether  the  parties  were  actually  guilty  of  bribery 
and  corruption  or  not.” 

(citing  to  same  effect  Marshall  v.  R.  S 0.  R.  Co.,  16  How.,  314.) 

Tliis  may  well  be  applied  here.  It  was  repeatedly  suggested  be- 
low that  the  bill  did  not  charge  corruption  against  the  Canal  Coni- 
missionei's.  The  reply  was  and  is  that  such  charge  is  not  neces- 


92 


sary.  Tlie  sei-ics  of  contracts  was  for  a common  object;  all  were 
connec'ted  together  and  the  primary  contract  of  all  the  perpetual 
llowage  contract  against  the  teeth  of  the  statute,  and  was  void,  and 
('ontaminated  all  the  rest. 

In  Doane  v.  Chicago  City  Ry.  Co.^  160  111.,  22,  the  court  applied 
the  principle  that  ‘Hhe  signatures  of  abutting  property  owners  to 
a i)etition  to  a city  council,  * * * for  the  laying  of  tracks  in 

a street  cannot  be  lawfully  purchased;  * * * agree- 

ment based  thereon,  being  opposed  to  public  policy,  will  not  be  en- 
forced by  the  courts.” 

In  Brieshe  v.  North  Chicago  St.  Ry.  Co.,  82  111.  App.,  256,  the 
court  further  applied  this  principle.  The  contract  in  question  read 
as  follows: 

‘‘Chicago,  September  27,  1894. 

“Agreement  between  residents  of  Southport  avenue  and 
North  Chicago  Street  Kailroad  Company,  Julius  Brieske, 
Chairman. 

“Dear  Sir:  In  consideration  of  the  good  will  and  co-opera- 
tion of  the  residents  of  Southport  avenue,  from  Clark  street  to 
Clybourn  place,  and  their  respective  signatures  to  a petition 
to  grant  to  the  North  Chicago  Street  Railroad  Company  per- 
mission to  construct  and  operate  a line  of  street  railways  on 
said  Southport  avenue,  between  Lincoln  avenue  and  Clybourn 
place,  the  North  Chicago  Street  Railroad  Company  hereby 
covenants  and  agrees  to  pay  to  such  a one  as  your  committee 
may  appoint  the  sum  of  your  obligation  to  your  attorneys, 
which  sum  is  not  to  exceed  four  hundred  dollars  ($400)  and  a 
further  sum  of  two  hundred  and  fifty  dollars  ($250)  as  reim- 
bursements for  the  amount  of  assessments  collected  from  the 
people  whom  you  represent  and  as  payment  for  the  time  and 
trouble  of  your  committee,  which  sums  are  to  be  paid  imme- 
diately upon  construction  of  the  said  railway  line  on  South- 
port  avenue. 

“And  further,  the  North  Chicago  Street  Railway  Company 
hereby  covenants  and  agrees  to  pay  unto  each  and  every  owner 
of  property  abutting  on  said  Southport  avenue,  from  Clark 
street  south  to  Clybourn  place,  the  amount  of  money  paid  out 
respectively  by  said  owners  for  the  paving  of  said  Southport 
avenue  to  the  extent  of  a space  of  sixteen  feet  in  width,  to 
be  occupied  by  said  railroad  company,  which  amounts  are  to 
be  paid  to  the  citizens  of  Southport  avenue  immediately  upon 
the  construction  of  the  above  described  street  railway. 

“This  agreement  is  made  for  the  purpose  of  securing  a 
unanimous  vote  on  Southport  avenue,  and  that  the  differences 


93 


wiru*li  have  so  long  existed  to  our  Tnutual  detriment  be  now 
and  for  the  future  removed. 

‘‘Noktii  (hncAoo  St.  Jl.  I{.  Oo., 

By  I).  W.  Loudekbkck.^^ 

The  court  said : 

‘‘If  it  be  said,  as  urged  by  appellants,  that  the  agreement 
was  in  compromise  of  conflicting  rights  and  differences  whicli 
have  so  long  existed  between  appellants  and  appellee  concern- 
ing the  use  of  Southport  avenue  by  appellee  for  a railway, 
and  that  future  good  will  and  co-operation  between  them 
were  lawful  considerations,  the  law  which  stamps  with  its 
disapproval  a contract  based  upon  an  entire  consideration  any 
part  of  which  is  illegal,  is  in  no  wise  satisfied.  * * 

“ ‘As  a general  rule,  if  any  part  of  an  entire  consideration 
for  a promise  or  any  part  of  an  entire  promise  be  illegal, 
whether  by  statute  or  at  common  law,  the  whole  contract  is 
void.  If  a part  of  the  consideration  is  illegal,  the  whole  con- 
sideration is  void,  because  public  policy  will  not  permit  a 
party  to  enforce  a promise  which  he  has  obtained  by  an  ille- 
gal act  or  an  illegal  promise,  although  he  may  have  con- 
nected with  this  act  or  promise  another  which  is  legal.’ 

H enderson  v.  Palmer,  71  111.,  579. 

“‘A  contract  illegal  in  paid  and  legal  as  to  the  residue  is 
void  as  to  all,  when  the  parts  cannot  be  separated.  When 
they  can  be,  the  good  will  stand  and  the  rest  will  fall.  One 
entire  consideration  cannot,  within  this  rule,  be  separated, 
though  composed  of  distinct  items,  some  of  which  are  legal 
and  others  illegal.’  Bishop  ou  Contracts,  Sec.  487,  and  cases 
cited.”  (82  111.  App.,  259.) 

In  the  case  at  bar,  moreover,  both  the  lease  and  the  renewal 
provision  are  contaminated  by  the  flowage  contract.  The  lease 
was  not  a lease  of  the  entire  ])roperty,  either  as  to  the  90-foot  strip 
or  the  54-acre  tract.  It  was  a lease  subject  to  the  ]:>erpetual  flow- 
age  contract;  that  is,  the  lessee  was  to  obtain  what  was  left,  bur- 
dened and  encumbered  by  submergence  under  a contract. 

The  court  resorted  to  the  void  flowage  contract  as  evidence  to 
ascertain  the  purpose  for  which  the  lessee  took  the  lease  and  found 
it  to  be  his  purpose  to  lease  the  ground  for  purj^oses  of  flowage. 
In  other  words,  the  court  treated  them  as  separate  and  independ- 
ent contracts  for  the  purpose  of  determining  their  validity  and 
treated  them  as  if  they  weie  a united  and  entire  contract  for  pur- 
poses of  interpretation. 


94 


5.  A contract,  bond  or  deed  which  provides,  among  other  things, 
to  do  something  forbidden  by  statute,  is  void  in  toto. 

‘^Aiid  (lifferenee  was  taken  between  a })on(l  made  void  by 
statute  and  l)y  eomnion  law;  foi'  n})on  the  statute  of  23  H.,  6,  if 
the  sheriff  will  take  a bond  for  a point  against  that  law,  and 
also  for  a due  debt,  tlie  wliole  bond  is  void;  for  the  letter  of 
the  statute  is  so;  for  a statute  is  a strict  law.” 

Norton  v.  Sinrmes,  Hobart,  Vic. 

‘‘T  have  heard  my  Lord  Hobart  say  upon  this  occasion  that 
because  the  statute  would  make  sure  work  and  not  leave  it  to 
exposition  what  points  should  be  taken,  therefore  it  was  added 
that  bonds  taken  in  other  form  should  be  void.  However, 
said  he,  the  statute  is  like  a tyrant,  where  he  comes  he  makes 
all  void;  but  the  common  law,  like  a nursing  father,  makes 
void  only  that  part  where  the  fault  is  and  preserves  the  rest.” 
(Twisdex,  J.) 

Maleverer  v.  Redshaiv,  1 Mod.,  35. 

^ ‘Where  one  of  two  considerations,  or  a distinct  part  of  one 
consideration,  is  for  any  reason  not  capable  of  sustaining  a 
contract,  birt  is  not  otherwise  obnoxious  to  the  law,  the  courts 
universally  recognize  the  situation  as  a partial  failure  of  con- 
sideration, and  permit  a pro  tanto  recovery.  But  ivhere  one 
of  tivo  considerations,  or  a distinct  part  of  one  consideration, 
is  unlawful,  as  being  forbidden  either  by  the  statute  or  by 
common  law,  the  prevailing  view  is  that  the  partial  illegality 
taints  the  entire  transaction  and  the  contract  itself  is  vovd.’^ 

State  V.  Wilson,  73  Kan.,  334. 

“If  any  part  of  the  entire  consideration  for  a promise  or 
any  part  of  an  entire  promise  be  illegal,  whether  by  statute  or 
common  law,  the  whole  contract  is  void.  If  there  are  provi- 
sions in  a contract  for  compensation  which  is  just,  yet  if  those 
provisions  are  blended  and  confused  with  others  which  are 
forbidden,  the  whole  contract  is  a unit  and  indivisible.  That 
which  is  bad  destroys  that  which  is  good  and  they  perish  to- 
crether.  ^ ^ 

(1898)  Critchfield  v.  Bermudez  Paving  Co.,  174  111.,  466,  at 
481,  affirming  62  111.  App.,  221;  following  Henderson  v. 
Palmer,  71  Ilk,  582  (mortgage  to  secure  note  in  renewal 
of  former  note  for  fee  for  services  in  procuring  discon- 
tinuance of  prosecution.) 

In  Clark  v.  Baker,  5 Mete.,  452,  the  court  said: 

“ ‘If  the  contract  is  entire,  if  it  be  one  bargain,  then  it  mat- 
ters not  if  there  be  one  or  many  articles,  and  though  each  may 


Iiavo  an  appi’opriato  pi'ic'C.  In  ilio  ono  casc^  IIk^  vcnidor  rni^j^lit 
llavo  1)0011  nnwillin'^'  to  soil  one  portion  without  soiling  the 
wliolo;  in  anotlior  tlio  buyer  ini^lit  not  be  willing  to  take  a 
[)art  unless  be  could  liave  tlie  whole.’ 

‘‘To  tlie  same  effect  is  N orrington  v.  Wright,  115  TT.  S.,  188, 
and  in  Coos  Bag  Wagon  Co.  v.  Crocker,  4 Fed.,  577,  it  is  said: 
‘Wlietlier  a contract  is  entire  or  severable  depends  upon  the 
intention  of  the  parties  to  be  gleaned  from  all  the  facts  and 
circumstances  in  the  case.’  ” 

McMidlen  v.  Hoffman,  174  U.  S.,  639,  is  the  case  of  an  action  on 
a partnership  agreement  for  an  accounting  and  a distribution  of 
profits  on  a contract  with  the  City  of  Oregon,  obtained  by  a com- 
bination to  prevent  competition.  It  was 

“Held,  that  this  contract  was  illegal,  not  only  as  tending 
to  lessen  competition,  but  also  because  the  parties  had  com- 
mitted a fraud  in  combining  their  interests  and  concealing 
the  same,  and  in  submitting  the  different  bids  as  if  they  were 
hona  fide  and  that  the  court  will  not  lend  his  assistance  in 
any  way  towards  carrying  out  the  terms  of  an  illegal  contract, 
nor  will  it  or  any  court  enforce  any  alleged  rights  directly 
springing  from  such  a contract.” 

Opinion  by  Mr.  Justice  Peckham,  at  p.  653. 

‘‘The  unity  of  the  contract  is  not  severed  or  its  meaning  or 
effect  in  any  degree  altered  by  putting  part  of  it  into  writing 
and  leaving  the  rest  in  parol. 

“Concluding  as  we  do  that  this  agreement  between  these 
])arties  is  as  a whole  of  an  illegal  nature  and  that  the  portion 
thereof  which  is  reduced  to  writing  cannot  be  separated  from 
the  balance  of  the  agreement,  the  (]uestion  then  arises  as  to 
the  result  of  such  (‘onclusion  upon  the  parties  to  the  agree- 
ment. 

*********** 

“If  the  partnership  agreement  that'  is  contained  in  the 
writing  above  set  forth  is  in  truth  but  part  of  an  entire  agree- 
ment, which  contains  utterly  illegal  provisions,  then  this  action 
cannot  be  maintained  within  any  of  the  authorities.” 

Furtber,  in  quoting  from  McBlair  v.  Gihhs,  17  How.,  232 : 

“ ‘It  may  be  admitted  that  even  a subsequent  collateral 
contract,  if  made  in  aid  and  in  furtherance  of  the  execution 
of  one  infected  with  illegality  partakes  of  its  nature  and  is 
equally  in  violation  of  law.  * * 

“The  concurrent  doctrine  of  the  text  books  on  the  law  of 
contracts  is  that  if  one  of  two  considerations  of  a promise  be 
void  merely,  the  other  will  support  a promise,  but  that  if  one 
of  two  considerations  be  unlawful,  the  promise  is  void.  When, 


96 


however,  for  a legal  eonsideration  a party  undertakes  to  do  one 
or  more  acts,  and  some  of  them  are  unlawful,  the  contract  is 
good  for  so  much  as  is  lawful,  and  void  for  the  residue.  When- 
ever the  unlawful  part  of  the  contract  can  be  separated  from 
the  rest  it  will  be  rejected,  and  the  remainder  established. 
But  this  cannot  be  done  when  one  of  two  or  more  considera- 
tions is  unlawful,  whether  the  promise  be  to  do  one  unlawful 
act  or  two  or  more  acts,  part  of  which  are  unlawful;  because 
the  whole  consideration  is  the  basis  of  the  whole  promise.  The 
parts  are  inseperable.”  (Citing  text  writers.)  ‘‘Whilst  a 
partial  want  or  failure  of  consideration  avoids  a bill  or  note 
only  pro  tanto,  illegality  in  respect  to  a part  of  the  considera- 
tion avoids  it  in  toto.  The  reason  of  this  distinction  is  said  to 
be  founded,  partly  at  least,  on  grounds  of  public  policy,  and 
partly  on  the  technical  notion  that  the  security  is  entire,  and 
cannot  be  apportioned;  and  it  has  been  said  with  much  force 
that  tvhere  parties  have  woven  a net  of  fraud  or  wrong,  it  is 
no  part  of  the  duty  of  courts  of  justice  to  unravel  the  threads 
and  separate  the  sound,  from  the  unsound/^ 

Widoe  V.  Webb,  20  Ohio  St.,  435. 

But  in  the  case  at  bar  the  trial  court  through  inadvertence  was 
taken  by  the  over-acuteness  and  subtlety  of  the  suggestion  that  it 
could  prune  away  the  void  renewal  clause  from  the  lease,  could 
separate  the  void  flowage  contract  from  the  lease,  could  treat  the 
void  sale  as  valid,  and  then  look  into  the  void  flowage  contract  to 
find  a use  and  purpose  to  which  to  devote  the  tow-path,  90-foot 
strip,  canal  bank  and  riparian  lands,  viz.,  sidmiergence  by  a water- 
poiver  dam. 

6.  A new  contract  connected  ivith  or  growing  out  of  an  illegal 
transaction  is  itself  also  illegal. 

Commisisoners  of  Delmvare  Co.  v.  Andrews,  18  Ohio  St., 
49  (1868). 

There  the  County  Commissioners  made  an  illegal  subscription 
for  bonds  of  the  railroad  and  paid  the  subscription  by  means  of 
County  orders  payable  at  a future  date,  and  the  County  received 
the  railroad  bonds  so  subscribed  for.  The  railroad  company’s  di- 
rectors diverted  the  funds  so  obtained  from  the  purpose  of  con- 
struction and  then  gave  their  individual  bonds  to  the  County  Com- 
missioners to  insur.e  the  completion  of  the  road  by  specified  date 
before  the  County  orders  became  due.  Default  was  made  on  this 


97 


also,  and  tliei‘eiii)Oii  the  suit  was  on  tlio  individual  bonds 

of  the  directors.  The  court  held  that  these  individual  bonds  w(n-(^ 
the  outgrowth  of  the  original  transaction;  that  the  original  ordco's 
were  void  and  the  indemnifying  bonds  were  also  void. 

The  court  said : 

‘^Moreover,  as  if  this  was  intended  to  ratify  the  original 
transaction,  the  Commissioners  retain  the  mortgage  bonds 
that  they  received* for  the  orders.- 

‘‘The  money  was  paid  on  the  orders  after  the  delivery  of 
the  defendanCs  bonds : The  first  order  was  paid  on  the  day  the 
first  bond  was  given,  and  the  orders  after  the  date  of  the  bond 
in  suit.  Hence  it  would  seem  that  the  bond  was  taken  to  keep 
alive  and  make  effective  the  illegal  orders,  so  that  they  might 
be  available  to  the  company  for  the  accomplishment  of  the 
purposes  for  which  the  orders  were  issued.  The  bond  was 
thus  entered  into  and  became  a part  of  the  transactions  of  the 
board  of  Commissioners  in  the  unauthorized  and  illegal  dis- 
position of  the  County  credit  and  County  money  in  aid  of  tlm 
railroad  corporation.  The  whole  transaction  was  clearly 
against  the  spirit  and  policy  of  the  constitution  and  laws  of 
the  State.  To  sustain  transactions  like  these  would  nullify 
the  salutary  ])rohibitions  of  the  constitution  and  open  wide 
the  door  to  the  very  evils  thereby  sought  to  be  obviated.” 

It  will  be  noted  that  the  indemnifying  bonds  were  to  operate 
for  the  protection  of  the  County  against  the  loss  of  the  money  ille- 
gally paid  out;  that  is,  the  indemnifying  bonds  were  for  the  bene- 
fit of  the  public,  but  this  did  not  give  them  validity;  they  were  ])art 
of  the  illegal  transaction. 

The  people  who  wrongfully  got  the  public  money  might  be  liable 
directly  for  its  return  in  an  action  for  money  had  and  received,  but 
the  indemnifying  bond  to  indemnify  the  County  for  the  illegal  acts 
and  payments  of  its  Commissioners  was  void  because  it  flowed 
from,  and  was  a part  of,  the  illegal  transaction. 

So  of  a note  given  for  a share  of  profits  from  a prohibited  trans- 
action, though  in  the  hands  of  a hona  fide  transferee  for  value 
without  notice. 

Cough  V.  Pratt ^ 9 Md.,  526. 

Bell  v.  Quinn,  2 Sandford’s  Sup.,  146. 

“Where  a contract  grows  immediately  out  of,  and  is  con- 
nected with,  an  illegal  or  immoral  act,  a court  of  justice  will 
not  lend  its  aid  to  enforce  it.  And  if  the  contract  be,  in  fact. 


98 


only  ('oniioctcHl  with  the  illegal  transaction,  and  growing  im- 
nu‘(Iiatcly  ()iit  of  it,  thongli  it  he  in  fact  a new  contract,  it  is 
(Hjiially  tainted  by  it.’’ 

Armst I'oHfi  Toler,  11  WJieat.,  208,  at  278,  opinion  by 

iMarshall,  C.  J.  (cited,  followed  and  applied  to  a con- 
ti’act  growing  out  of  a wager  in  NesJi  v.  Monheimer,  20 
111.,  217), 

This  is  ])recisely  the  relation  of  the  contract  of  lease  to  the  flow- 
age  contract. 

The  lease  was  subsidiary  to  and  an  afterthought  consequent 
upon  the  flowage  contract.  It  grew  out  of  the  flowage  contract. 

The  lease  was  an  afterthought  to  the  flowage  contract.  This  ap- 
pears from  the  testimony  of  Canal  Commissioner  Sackett  sum- 
marized above  as  follows : 

On  the  same  day  that  this  flowage  contract  was  made  there 
was  a lease  made  from  the  Commissioners  to  Griswold. 

The  flowage  contract  had  been  under  discussion  and  prac- 
tically agreed  upon  up  to  the  time  of  the  introduction  of  this 
lease.  The  lease  was  second  or  practically  at  the  same  meet- 
ing, hut  it  came  in  after  the  flowage  contract  had  been  debated, 
considered  and  practically  decided  on. 

It  came  as  a result  of  a discussion  relative  to  the  rights  re- 
cited in  the  river.  Either  the  President  of  the  Board  or  at- 
torney for  the  Board  saying  to  Mr.  Munroe  that  we  did  not 
consider  we  had  any  right  or  jurisdiction  to  give  to  the  river. 
Mr.  Munroe ’s  position  was  that  if  we  were  correct  in  the  as- 
sumption that  we  had  no  rights  in  the  river  that  it  would  do 
no  harm  for  us  to  allow  them  to  be  set  forth,  and  perhaps 
might  do  them  some  good. 

So  the  testimony  of  Mr.  McDonald  on  the  subject  is  heretofore 
summarized  as  follows : 

Mr.  Munroe  first  came  to  see  me  about  acquiring  this  tract 
in  the  spring  of  1904.  He  had  a tentative  proposition  con- 
cerning the  flou'age  of  it  and  possible  leasing  or  buying  it.  I 
went  with  him  and  examined  the  property.  He  outlined  in  a 
general  way  what  he  proposed  to  do — damming  the  river,  over- 
flowing the  riparian  tract,  attaching  the  dam  to  the  tow-path  as 
a retaining  wall  for  the  pool  to  be  formed,  and  flow  the  90- 
foot  strip. 

It  was  mentioned  by  at  least  one  and  probably  more  than 
one  of  the  Commissioners  or  their  attorney  that  the  Commis- 
sioners had  no  power  to  confer  a right  to  do  these  things  that 
you  suggest. 


Mr.  IVIiiiiroo  said  that  if  the  (/V)mrriissioiiers  had  nothing  to 
give  away  tlie  insertioM  of  what  he  asked  for  in  the  eoritract 
Avonld  not  cost  them  anything. 

The  general  subject  of  making  the  necessary  contracts, 
leases,  deeds,  instruments  securing  these  rights  came  up  at 
every  meeting  of  the  Commissioners. 

7.  The  peepetuat.  elowage  contkact  and  illegal  kenewal 

I.EASE  WERE  DEVICES  AND  INSTRUMENTS  WHICH  WERE  ADAPTED  TO  DE- 
FEAT AND  WERE  SUCCESSFUL  IN  DEFEATING  FREE,  OPEN  AND  COMPETI- 
TIVE BIDDING  AT  THE  SALE. 

Contracts  operating  to  defeat  the  State  in  this  way  are  void. 

The  effort  of  the  court  was  to  hold  the  contract,  part  good  and 
part  had — throw  away  the  bad  and  save  the  good  to  the  party 
seeking  to  profit  at  the  expense  of  the  State. 

The  fiowage  contract  the  court  held  void.  The  renewal  clause 
in  the  lease  the  court  held  void.  The  lease  itself  was  made  subject 
to  the  fiowage  contract  and  the  sale  was  advertised  to  he  subject 
both  to  the  illegal  floiuage  contract  and  the  lease  ivitli  the  illegal 
provisions. 

The  fiowage  contract  and  lease  were  mentioned  in  the  advertise- 
ment (Ex.  1,  Abst.,  p.  258),  and  any  prospective  buyer  was  given 
notice  of  the  fact  that  adverse  rights  existed  in  Griswold  and  that 
the  same  included  both  rights  of  fiowage  and  rights  of  lease.  Of 
course  nobody  else  bid.  The  lease  brought  only  $500  rental,  and 
the  deed  only  $500  purchase  money,  while  the  perpetual  fiowage 
contract  brought  $2,200  purchase  money;  and  the  pole  line  lease 
brought  $750. 

This  operated  to  cloud  the  title,  to  chill  the  bidding,  to  depress 
the  value.  They  prevented  free,  equal,  open,  competitive  bidding. 
All  these  contracts  went  to  the  same  party,  who  became  the  final 
purchaser.  The  sale  originally  contemplated,  advertised,  post- 
poned, and  then  re-advertised  and  conducted  by  an  irresponsible 
employe,  was  so  conducted  as  to  be  in  the  end  the  sale  contem- 
})lated  in  the  beginning,  and  to  secure  such  advantages  to  the  pur- 
chaser as  to  preclude  any  competition.  The  several  steps  in  the 
transaction  were  so  related  that  it  was  impossible  for  any  other 
])arty  to  hid  ‘‘on  eipial  terms”  with  that  party  in  the  bidding,  im- 
])ossible  for  the  State  to  secure  the  benefit  of  such  public  competi- 


100 


tioii  as  tile  policy  ol  the  law  reijuires.  And  these  elements  render 
all  the  (‘ontracts  void. 

The  naked  legal  title  when  encumbered  by  tbe  Oowage  contract, 
the  o])tion  of  renewal  in  the  lease,  the  possession  of  Griswold  and 
his  assigns  and  hedged  in  by  the  pole  line  contract  for  eight  miles 
in  one  direction  and  seventeen  in  the  other,  was  indeed  of  no  avail 
to  the  Oommissioners  and  of  no  avail  in  the  market.  The  lease 
itself  for  twenty  years  was  unimportant  to  the  lessee,  except  as  an 
instrument  to  aid  in  ac(‘oni])lishing  the  illegal  purpose  of  the  flow- 
age  contract. 

In  Dement  v.  Hoick er^  126  111.,  176,  the  courts  specifically  held 
with  reference  to  the  letting  of  contracts  by  State  officers  for  State 
pilnting  as  follows : 

“ ‘Letting  by  contract  to  the  lowest  responsible  bidder’ 
necessarily  implies  equal  opportunity  to  and  freedom  in  all 
whose  interests  or  inclinations  might  thus  impel  them  to  com- 
pete at  the  bidding.  No  one  may  be  compelled  to  bid  at  such 
a letting,  but  there  must  be  entire  fairness  and  freedom  in 
competition ; and  no  one  can,  within  tbe  meaning  of  the  pro- 
visions of  the  constitution  and  statute  quoted,  claim  to  be  the 
lowest  bidder,  where  others,  who  otherwise  would  have  bid,  are, 
by  an  arbitrary  arrangement  to  prevent  competition,  kept 
from  bidding.  * * * 

“Counsel  for  defendants  in  error,  however,  contend  that 
inasmuch  as  these  sections  do  not  expressly  declare  that  con- 
tracts made  in  violation  of  their  provisions  shall  be  void,  and 
as  the  penalties  which  they  declare  are  not  on  the  making  of 
such  contracts,  but  on  the  persons  doing  the  things  prohibited, 
they  cannot  be  resorted  to  for  tbe  purpose  of  establishing  the 
invalidity  of  these  contracts.  It  is,  in  considering  this  con- 
tention, pertinent  to  keep  in  mind  the  distinction  between  con- 
tracts where  the  contracting  parties  liave  an  inherent  power 
to  contract  and  contracts  where,  as  here,  there  is  no  inherent 
power  to  contract,  but  the  contract  is  purely  by  virtue  of  a spe- 
cial statutory  authority.  In  the  former  instance  the  contract  is 
presumed  to  be  lawful,  and  it  devolves  upon  those  who  claim 
its  invalidity  to  show  that  it  is  within  the  statutory  authority. 
It  is,  therefore,  not  upon  these  plaintiffs  in  error,  in  the  first 
instance,  to  establish  the  invalidity  of  these  contracts,  but 
upon  defendants  in  error  to  establish  their  validity— in  doing 
n'hich,  as  ive  have  seen,  an  imdispensahle  step  is  that  they  ivere 
the  loivest  responsible  bidders.  * * * 

“All  of  the  authorities  are  in  substantial  accord  that  no  one 
ean  derive  rights  under  a contract  made  for  the  purpose  of 


101 


preventing  competition  in  bidding.  Ilaniilton  v.  Ilamilion,  2 
Rich.  Eq.,  355;  James  v.  Fulcrod,  5 Texas,  512;  Dudley  v.  I At- 
tic, 2 Ohio,  504;  Jones  v.  Caswell,  3 Johns.  Gas.,  29;  Thompson 
V.  Daviess,  13  id.,  112 ; Gibbs  v.  Smith,  115  Mass.,  592 ; 1 Story’s 
Eq.  el 111*.,  Sec.  293.  And  this  applies  with  like  force  to  public 
as  to  private  contracts.  ’ {Weld  v.  Lancaster,  50  Me.,  453 ; Swan 
V.  Chorpenning , 20  Cal.,  182;  Greenhood  on  Public  Policy,  Rule 
175,  p.  183.)  It  may  sometimes  be  difficult  to  ascertain  the  mo- 
tives controlling  in  the  formation  of  the  partnership;  but  this 
affects  only  the  question  of  fact  in  the  particular  case. 

^‘An  argument  is  sought  to  he  drawn  against  the  necessity 
of  a strict  observance  of  the  requirement  that  the  contract 
shall  be  let  to  the  lowest  responsible  bidder,  from  the  facts 
that  the  statute  also  requires  that  no  contract  shall  be  made 
without  the  written  approval  of  the  Governor;  that  maximum 
rates  are  fixed  in  the  statute,  and  that  the  bidding  is  to  be 
supervised  by  an  expert  printer,  etc. ; and  that,  from  the  nature 
of  the  case,  if  the  bidding  was  supervised  by  the  expert,  the 
amount  bid  was  less  than  the  maximum  rate,  and  the  contracts 
were  approved  by  the  Governor,  the  State  should  be  concluded. 
But  the  statute  merely  directs  these  as  successive  steps  in  the 
execution  of  the  contracts,  and  makes  no  provision  that  either 
or  all  shall  he  conclusive.  Plainly,  they  are  intended  as  dis- 
tinct and  successive  safeguards  to  protect  the  State  against 
imposition  and  extortion.  Where  the  provision  of  the  statute 
is  the  essence  of  the  thing  required  to  be  done,  and  by  which 
jurisdiction  to  do  it  is  obtained,  it  is  held  to  be  mandatory. 
Rex  V.  LocJcsdale,  1 Burr.,  447 ; Marshall  v.  Langworthy , 6 
Hill,  646;  Sinker  v.  Kelly,  7 id.,  9;  People  v.  Schemerhorn,  19 
Barb.,  558. 

‘‘Although  the  Commissioners  may  have  assumed  the  con- 
tracts to  be  valid,  since  they  were  made,  and  done  acts  upon 
the  faith  of  that  assumption  prejudicial  to  these  defendants 
in  error,  if  their  legality  be  now  denied,  the  question  of  the 
validity  of  the  contracts  is  still  open.  ‘The  State  is  never 
estopped,  as  an  individual  or  private  corporation  may  be,  on 
the  ground  that  the  agent  is  working  under  an  apparent  au- 
thority which  is  not  real — the  conclusive  presumption  that 
his  powers  are  known  rendering  such  a consequence  impossi- 
ble.’ Bishop  on  Contracts  (enlarged  ed.),  Sec.  993,  and  au- 
thorities there  cited.” 

So  in  Littler  v.  Jayne,  124  111.,  123,  the  court  sustained  a hill 
for  an  injunction  against  action  by  public  agents,  leading  to  the 
payment  of  public  money  on  illegal  contracts  and  the  illegality 
consisted  in  the  letting  of  the  public  contract  on  a misleading  ad- 
vertisement. The  facts  in  that  case  are  familiar  to  the  court. 


102 


The  alleged  eoiitraet  was  for  the  eonstruction  of  bronze  statues 
and  the  advertisement  did  not  specify  the  kind  of  material  to  be 
used.  The  court  said : 

“It  was  important  that  the  material  of  which  the  statues 
were  to  be  made  should  have  been  advertised,  in  order  for 
intending  bidders  to  be  able  intelligently  to  make  their  bids 
and  proposals  for  the  construction  of  the  statues.  It  is  ob- 
vious, as  the  proof  shows,  that  the  cost  of  the  statues  would 
be  dependent  upon  the  material  of  which  they  were  composed, 
and  would  vary  very  greatly,  according  to  the  kind  of  ma- 
terial, and  whether  marble,  jdaster,  bronze,  sheet  iron,  cast 
iron,  cast  zinc,  etc. 

time  limited  for  receiving  and  opening  bids 
was  September  10,  1885,  at  twelve  o’clock  M.  The  contract 
was  actually  let  to  Poulson  & Eger  September  11,  1885.  How 
is  it  possible  to  regard  the  contract  here  as  let  in  compliance 
with  the  statute  requiring  that  all  contracts  for  labor  or  ma- 
terials shall  be  let  after  advertising  for  bids  for  the  same  for 
thirty  days,  when  the  materials,  the  kind  of  which  was  of  such 
vital  consequence  for  the  making  of  the  contract  in  question, 
were  not  determined  upon  at  the  time  of  inserting  the  adver- 
tisement, and  not  until  just  before  the  opening  of  the  bids  and 
the  letting  of  the  contract?  How  could  work  and  materials 
not  known  and  determined  upon  be  advertised  and  intelligently 
bid  for?  The  bid  of  Poulson  & Eger  was  the  only  one  made 
for  the  statues.  The  contract  price,  the  proof  shows,  was 
some  $2,800  or  $3,000  more  than  the  reasonable  value.  How 
could  the  kind  of  the  material,  the  character  of  the  work,  who 
was  to  furnish  the  models,  as  described  in  the  contract,  have 
been  ascertained  and  settled  upon  except  through  private  ne- 
gotiation ? 

“We  regard  this  contract  with  Poulson  & Eger  for  these 
statues  as  essentially  a private  contract  made  with  them,  and 
not  as  having  been  publicly  let  in  compliance  with  the  statute, 
but  let  contrary  to  its  provisions,  and  we  must  hold  the  same, 

therefore,  to  be  null  and  void.” 
*********** 

“It  is  said  the  Governor’s  approval  of  the  Commissioners’ 
vouchers  is  necessary  for  the  drawing  of  any  money  there- 
under, that  such  power  of  approval  is  a sufficient  protection 
for  the  taxpayer,  and  that  the  injunction  asked  for  would  be 
an  improper  interference  with  the  duty  of  the  executive  in  the 
exercise  of  such  power  of  approval.  If  it  were  a case  where 
a gross  and  palpable  breach  of  lav7  was  apparent,  this 
power  of  approval  might  be  a sufficient  reliance  against  the 
making  of  any  ])ayment  under  an  illegal  voucher  of  the  Com- 
missioners. But  in  a case  of  such  doubt  as  appears  here,  there 
having  been  a contrary  determination  by  two  other  courts, 


io:5 

the  (lovei’iior  iniglit  tcike  the  view  that  thei-(i  was  a judicial 
(liiestioii  involved,  which  might  more  pro[)erly  he  referred  to 
the  judicial  department  of  the  Government  to  settle,  and  so 
add  his  sanction  to  what  had  been  certified  to  by  the  Commis- 
sioners nnder  the  responsibility  of  their  oflicial  duty.” 

* * * * ’ * 

^^Tliis  whole  proceeding  of  the  commissioners  with  respect 
to  the  contract  in  question  we  regard  as  one  in  misappropria- 
tion of  the  public  money.’’ 

The  lease  itself  was  plainly  made  ‘‘for  the  purpose  of  preventing 
competition  in  bidding.”  The  property  was  first  advertised 
for  sale;  then  the  sale  was  postponed;  then  the  flowage  contract 
and  lease  made;  then  the  property  was  again  advertised  for  sale, 
but  subject  to  Griswold’s  rights  of  flowage  and  lease.  Of  course, 
GrisAvold,  and  Griswold  only  appeared  to  bid.  The  lease  was  “for 
the  purpose  of  preventing  competition  in  bidding.”  And  ‘Cm  one 
can  derive  rights  under  a contract  made  for  the  purpose  of  prevent- 
ing competition  in  bidding 

Therefore  no  one  can  derive  rights  under  this  lease. 

8.  The  contracts  were  attempted  evasions  of  the  statutory 

PROHIBITIONS  AGAINST  THE  SAFE  OF  THE  NINETY-FOOT  STRIP,  AND 
AGAINST  THE  MAKING  OF  A EEASE  OF  EITHER  I.AND  OR  WATER-POAVER 
FOR  MORE  THAN  TWENTY  YEARS. 

These  contracts  grew  out  of  the  eATision  of  these  rest]*ictions. 
All  such  contracts  are  void. 

M unsell  v.  Temple,  H Gilm.,  98. 

There  the  Comity  Commissioners  sought  to  evade  the  statute 
which  imposed  the  condition  upon  the  licensing  of  a grocer  that 
“the  ap])licant  shall  j)ay  into  the  (kmnty  Treasury  for  the  priA"- 
ilege  granted  a sum  not  exceeding  $800  nor  less  than  $25.  * * *” 

The  Commissioners  first  issued  a license  on  credit  to  Parke,  and 
Parke  gave  his  note  therefor.  Afterwards  the  court  authorized 
the  transfer  of  this  license  to  Munsell  for  $21.88  and  ]\runsell  gave 
his  note  for  that  amount  and  suit  Avas  brought  upon  the  note.  The 
court  says: 

“As  a general  rule,  where  the  undertaking  upon  which  the 
plaintiff  relies,  was  either  upon  an  unlawful  consideration,  or 
to  do  an  unlawful  act,  the  contract  is  void;  and  this  whether 


104 


the  (‘()iiti-a(*t  he  illegal  as  l)e’m^  against  the  rules  of  tlie  eorn- 
inon  law,  or  the  ex[)ress  i)rovisions  or  genera!  poliey  of  any 
))arti(‘ulai'  statute.” 

* -r  # * * * ^ * * * * 

‘Mt  is  a ])lain  v^iolation  of  tlie  express  letter  of  the  statute 
to  issue  a lieense  on  eredit,  and  the  undertaking  of  Munsell  to 
pay  was  eonsequently  founded  on  a contract  against  the  ex- 
press  pi*o visions  and  the  general  policy  of  the  statute,  and  was 
therefore  void  in  law,  and  cannot  he  enforced.” 

So  in  Vilhuje  of  Dicifjlif  v.  Palmer,  74  111.,  295,  it  was  held  that 
where  a clerk  of  the  Board  of  Trustees  of  an  incorporated  village 
contracted  with  the  village  to  puhlish  certain  ordinances  for  $300 
which  was  rescinded  before  any  work  was  done  under  it  and  such 
officer  then  resigned  his  office,  but  the  contract  was  never  renewed 
after  the  acceptance  of  the  resignation,  it  was  held  that  he  was 
not  entitled  to  compensation  for  any  ordinances  he  may  have  pub- 
lished afterward,  as  it  wms  done  without  authority. 

The  court  said : 

‘‘The  appellee,  being  himself  a village  officer,  could  make 
no  contract  with  the  trustees  to  do  work  for  the  corporation  to 
he  paid  for  out  of  the  treasury  and  hence  the  alleged  contract 
for  printing  the  ordinances  was  absolutely  void.  It  was  a 
work  of  supererogation  on  the  part  of  the  trustees  to  attempt 
to  rescind  it.  It  had  no  binding  force  at  all,  and  whatever  was 
done  by  appellee  under  it  was  done  without  any  authority  from 
the  village. 

“The  money  was,  therefore,  unlawfully  obtained.  Appellee 
had  no  right  to  it.  He  was  entitled  to  no  compensation  what- 
ever from  the  village  for  anything  he  may  have  done  under 

the  alleged  contract  while  he  v»ms  one  of  its  officers.” 
*********** 

“Appellee  has  received  money  out  of  the  village  treasury 
under  an  illegal  contract,  and  under  snch  circumstances  as 
render  it  against  the  policy  of  the  law  for  him  to  retain  it.” 

The  same  rule  was  followed  in  very  similar  facts  in  MaKaly  v. 
^laifor,  3 Hun.,  66. 

“Greenhood’s  Public  Policy”  (Knle  470,  p.  545)  sums  up  these 
cases  with  many  others  in  the  following  rule : 

“When  the  law  imposes  restrictions  upon  public  officers 
any  contract  which  groics  oat  of  an  evasion  of  such  restrictions, 
or  which,  if  enforced,  would  encourage  such  invasion,  is  void.” 


U).") 


i).  Tlll<:  (U)NSII)Ki{ATI()N  WAS  I N ADKA^UA  riC. 

This  is  aIlc\i>AHi  by  tlio  Iiironiuition  thus:  ^‘Snid  ('onlrncls,  (hA*(l., 
and  leases  were,  and  eaeh  oi*  them  wais,  enl(‘r(‘d  into  on  inad(‘(|uat(; 
eonsideration.”  (Ahst.,  ]>.  l^b.)  Tlie  eonsiderations  named  are  as 
follows : 

“Exliihit  A,”  Per[)etiial  Flowaige  Fontraet,  $2,200.  (Ahst.,  p. 
29.) 

‘‘Exhibit  B,”  l.ease  of  90-foot  Strip,  Tow-})atli  Bank  and  l\i])ar- 
ian  Tract,  $500.  (Abst.,  p.  34.) 

“Exhibit  0,’’  Kankakee  Feeder  Lease,  $150  per  annum.  (Abst., 
1).  37.) 

“Exhil)it  J,”  Deed  of  the  Riparian  Tract,  $500.  (Abst.,  p.  46.) 

“Exhibit  K,”  Pole  Line  Lease,  Robey  St.,  Joliet,  on  the  East,  to 
the  West  limit  of  Morris,  25  miles  of  tow-path,  $1,000.  (Abst.,  p. 
48.) 

These  considerations  are  grossly  inadequate. 

On  the  part  of  the  defendants,  against  objection,  the  evidence  of 
Charles  A.  Munroe  was  received : that  he  became  identified  with  the 
project  in  the  spring  of  1904;  that  he  accpiired  1,700  acres  of  land 
surrounding  that  location ; that  he  began  negotiations  with  the 
Economy  Light  & Power  Com])anv  in  April  or  May,  1906,  resulting 
in  a contract  July  31,  1906,  and  a deed  November  30,  1906,  convey- 
ing the  property  to  the  Ecoiiomy  Light  & Power  Clompany;  and  at 
the  same  time  a trust  deed  was  given  by  the  Ec'onomy  Light  cC 
Power  CAm])any  to  the  Royal  dh'ust  (k)mi)any,  trustees,  to  secure 
an  issue  of  $3,000,000  of  bonds,  $2,000,000  of  which  have  been 
sold;  that  the  defendant  has  ])aid  out  $135,000  to  contractors  upon 
the  work  of  erecting  this  dam,  and  that  the  total  work  will  cost 
$900,000,  exclusive  of  the  land. 

The  mortgage  in  (luestion  also  covers  some  other  pro])erty  at 
Joliet  (Abst.,  i)p.  1611-1615). 

AVhile  the  State  insists  that  this  evidence  was  incompetent, 
irrelevant  and  immaterial,  it  being  received  in  evidence,  it  suffi- 
ciently 'proves  the  inadecjuacy  of  the  consideration  i)aid  to  the 
State. 

The  Flowage  Contract,  the  Lease  of  the  Ninety-foot  Strip,  Tow- 


J()() 


])atli  P)aiik,  Ixipariaii  Ti-act,  and  Pole-line  Lease  (i\,  P>  and  K) 
were  made  on  the  same  day,  and  for  an  aggregate  eonsideration 
of  $d,7()().  The  deed  followed  for  $^00. 

Aside  from  the  Feeder  l.ease,  which  was  for  deferred  ])aynients 
of  $ir)()  per  annum,  the  ('anal  Commissioners  received  $4,200  for 
tliese  per])etual  riglits,  tlie  lease  and  the  deed,  and  the  right  to 
maintain  a j)ole  line  for  conveyance  of  electricity  over  25  miles 
of  the  tow-path.  The  land  conveyed,  we  have  seen,  aggregated 
over  100  acres. 

The  defendant  refers  to  the  land  as  the  16  acre  tract.  This  is 
a description  of  -so  much  of  the  land  as  lies  west  of  the  feeder, 
and  is  described  in  the  Canal  Report  as  ‘^certain  lots  in  the  old 
town  of  Kankakee.”  The  Canal  Report  of  1900  put  the  valuation 
of  the  16.82  acres  at  $25  per  acre.  (Canal  Report,  1900,  p.  42; 
A))st.,  p. .) 

At  this  price  per  acre,  the  1,700  acres  of  land,  which  were  the 
subject  of  the  mortgage  would  he  worth  $42,500.  If  they  were 
twice  this  sum  per  acre,  the  total  land  area  would  he  worth 
$85,000,  Avhich  may  he  taken  as  the  outside  limit  of  their 
value.  Assuming  the  defendant’s  testimony  to  be  correct  that 
the  total  plant,  in  addition  to  this,  will  be  worth  $900,000,  the 
value  of  tlie  property  aside  from  the  value  of  the  water  power 
rights,  vrould  be  less  than  $1,000,000. 

It  is  mortgaged  for  $3,000,000,  and  mortgages  are  usually  placed 
on  property  for  not  more  than  half  their  value.  If  this  property  is 
worth  $6,000,000,  or  even  if  it  were  mortgaged  for  the  full  value  and 
is  worth  only  $3,000,000,  and  the  total  investment  aside  from  the 
rights  obtained  from  the  State  is  $985,000 — what  is  there  to  stand 
for  the  $2,015,000?  There  is  the  value  of  the  rights  obtained 
from  the  State,  and  the  possible  value  of  the  other  property  at 
Joliet. 

(The  defendant  claimed  to  have  sold  $2,000,000  of  these 
bonds.  That  the  sale  was  colorable  may  be  inferred  here 
from  the  fact  that  the  defendant  in  its  suggestions  filed  here 
against  the  extension  of  time,  stated  that  it  was  unable  to 
finance  the  enterprise  while  this  suit  was  pending.) 

It  was  for  the  defendant  to  show  good  faitli  and  adequacy  of 
consideration  here.  It  had  peculiar  knowledge  of  the  amount 


107 


of  pi*0[)orly  otlicM-  Ilian  tliat  at  Drosdnn  Ihn^lils  (anliraccMl  in  this 
inorlgago,  and  its  rcdative  value.  It  is  a (‘ir('nnisian('(i  callin^^-  for 
explanation  and  ])vo()f  of  i>’ood  faith  and  adcMpiaey  of  ('onsid(;ra- 
tion,  when  ])ro})erty  honght  for  $85, ()()(),  and  ui)on  which  inipi-ov(*- 
nients  to  cost  $900,000  are  planned,  is  made  the  subject  of  a iiioi't- 
gage  for  $8,000,000;  and  the  fact  that  the  defendant  included  in 
the  mortgage  22  city  lots  in  Joliet  and  its  rights  in  the  invalid 
renewals  of  the  lease  on  Dam  No.  1 — as  to  the  real  and  pur])orted 
values  of  which  the  defendant  had  special  and  full  knowledge — 
made  it  incumbent  on  the  defendant,  in  showing  adequacy  of  con- 
sideration, to  show  how  much  of  the  consideration  for  this  mort- 
gage related  to  the  Joliet  and  Dam  No.  1 property.  That  the 
Joliet  and  Dam  No.  1 property,  the  22  city  lots  and  the  invalid 
lease  with  ten  years  to  run  at  the  time  the  mortgage  was  made, 
were  worth  $2,000,000  is  so  improbable  as  to  call  for  proof  from 
the  defendant. 

Schumacher  v.  Bell,  104  111.,  181. 

It  constitutes  one  of  those  cases  in  which,  in  the  language  of 
Judge  Sharswood,  ^‘The  houa  fides  of  the  vendee  ought  to  shine 
clear  as  the  sun.” 

Bastion  v.  Dougherty,  8 Phila.  Kep.,  80. 

The  failure  to  furnisli  such  evidence  raises  the  presumjition  that 
such  evidence  if  furnished  would  not  liave  been  favorable  to  the 
defendant. 

Stock  Exchauge  v.  Board  of  Trade,  190  111.,  890,  407. 

xVn  idea  of  the  value  of  the  water  ])ower  which  is  claimed  by  the 
Kconomy  Light  and  Power  (hmrpany  under  the  instruments  men- 
tioned, may  be  gathered  from  the  following  estimates: 

The  available  fall  at  the  ])oint  where  the  dam  is  under  con- 
struction is  from  a minimum  of  17  feet  to  a maximum  of  281 
feet,  or  an  average  of  224  feet.  This  clearly  appears  from  the 
testimony  of  defendant’s  cx])ert  AVoermann  (Abst.,  p.  1409)  — 
^^Low  water  level  equals  00  feet,”  ordinary  pool  level  equals  77 
feet,  extreme  high  water  ecpials  84  feet,  and  on  ])age  1480  the 
extreme  depth  of  the  pool  is  given  as  284  feet.  Mr.  Cooley  said: 
‘^It  (the  dam)  has  an  elevation  of  78  feet  below  Chicago  datum. 


lOS 


;iii(l  nhoiil  221  feet  a])ove  the  lower  part  of  tlie  river  bed.  (Abst., 
p.  878.) 

At  Look  port  (Abst.,  p.  277)  the  liead  is  18  feet.  Figured  at  16 
leet,  this  fall  witli  a flow  of  200, 000  eiibie  feet  per  minute  through 
tlie  Sanitary  (banal  (the  minimum  legal  how)  will  develop  9,090 
gross,  or  6,817.50  net  horse  power.  With  a flow  of  600,000  cubic 
feet  i)er  minute  (the  maximum  legal  flow  under  ])resent  condi- 
tions) 18,180  gross,  or  15,665  net  horse  power.  AVith  840,000 
(mbic  feet  ])er  minute  (the  maximum  flow  which  will  eventually 
prevail)  25,454  gross,  or  19.091  net  horse  power. 

55,000  foot-])ounds  ])er  minute  (or  550  foot-pounds  per  second) 
constitutes  a theoretical  horse-power.  The  weight  of  a cubic  foot 
of  water  is  62.5  ]munds.  These  facts  are  laid  down  in  all  the 
text  books  of  physics  and  are  well  known  to  the  court.  62.5  is 
contained  in  550,  just  8.8  times.  Therefore  8.8  cubic  feet  of 
water  falling  one  foot  in  one  second  will  produce  one  horse-power. 
Therefore  the  number  of  horse-power  in  a given  fall  of  water  can 
be  ascertained  by  multiplying  the  number  of  cubic  feet  of  flow  per 
second  by  the  fall  in  feet  and  dividing  the  product  by  8.8,  the  num- 
ber of  cubic  feet  of  water  necessary  to  fall  one  foot  to  produce 
one  horse-power.  The  net  horse-power  is  figured  at  from  75  to  80 
])er  cent,  of  the  theoretical. 

As  a compendium  of  universal  knowledge  on  this  subject  we 
beg  to  refresh  the  memory  of  the  court  by  the  following: 

“Power  is  the  rate  at  which  work  is  done,  and  is  expressed 
])y  the  quotient  of  the  work  divided  by  the  time  in  which  it  is 
done,  or  by  units  of  work  per  second,  per  minuute,  etc.,  as 
foot-pounds  per  second.  The  most  common  unit  of  power  is 
the  liorse-poicer,  established  by  James  Watt  as  the  power  of 
a strong  London  draught-horse  to  do  work  during  a short 
interval,  and  used  by  him  to  measure  the  power  of  his  steam- 
engines.  This  unit  is  55,000  foot  pounds  per  minute=550 
foot-])oimds  per  second^^l, 980,000  foot-pounds  i)er  hour,  (p, 
429..) 

AVeight  of  water  at  different  temperatures.  The  weight 
of  water  at  maximum  density,  59.1°  is  generally  taken  at  the 
figure  given  by  Eankine,  62.425  lbs.  per  cubic  foot.  Some 
authorities  give  as  low  as  62.579.  The  figure  62.5  commonly 
given  is  approximate.  The  higtiest  authoritative  figure  is 
62.425.  At  62°F,  the  figures  range  from  62.291  to  62.560. 


^riio  figure  02. .‘>55  is  geiiernliv  ;i('('(‘i)le(l  as  tli(‘  most  aeeiiraO*. 

(547.) 

POWKH  OF  A FALL  OF  WATFIl  — KFFKU  FNO Y.  Tlui  g'l’OSS  |)0\V(‘|- 

of*  a fall  of  water  is  tlie  prodiu*!  of  the  weight  of  water  dis- 
eharged  in  a unit  of  time  into  the  total  head.  i.  r.,  the  (Jiffer- 
enee  of  vertical  elevation  of  the  u|)i)er  surface  of  the  wat(n- 
at  the  points  where  tlie  fall  in  (juestion  begins  and  ends,  'idle 
term  Miead’  used  in  connection  with  water-wheels  is  the  dif- 
ference in  height  from  the  surface  of  the  water  in  the  wheel- 
pit  to  the  surface  in  the  pen-stock  when  the  wheel  is  run- 
ning. 

If  Q=cubic  feet  of  water  discharged  ])er  second,  I )— weight 
of  a cubic  foot  of  waterrr=62.36  lbs.  at  00°F.,  H==total  head 
in  feet;  then 

l)QH=gross  power  in  foot-pounds  per  second, 
and  DQH-^550=.1134  OH=gross  horse-power. 

Tf  Q'  is  taken  in  cubic  feet  per  minute, 

Q'Hxb2.36 

H.P^ .00189  Q'H. 

33,000 

A water-wheel  or  motor  of  any  kind  cannot  utilize  the  whole 
of  the  head  H,  since  there  are  losses  of  head  at  both  the  en- 
trance to  and  the  exit  from  the  wheel.  There  are  also  losses 
of  energv^  due  to  friction  of  the  water  in  its  passage  through 
the  wheel.  The  ratio  of  the  power  develo])ed  by  the  wheel 
to  the  gross  power  of  the  fall  is  the  efficiencv  of  the  wheel. 

' ' Q'H 

For  75%  efficiency,  net  horse-])ower  .00142  Q'H=-- ” (]r 


'00 


588). 


(Kent’s  ‘^Mechanical  Fngineer’s  Pocket-Book.”) 


Similar  definitions  may  be  found  in  any  standard  work  on  the 
subject. 

That  the  court  will  take  judicial  notice  of  such  physical  facts 
of  nature  and  physical  science  as  the  weight  of  a cubic  foot  of 
water,  and  the  universal  standard  definition  of  a horsei)ower 
a])pears  from  flie  cases  on  judicial  notice  cited  elsewhere  in  this 
brief. 

In  particular  in  Hauhoni  v.  People’s  Ice  Co.  (Minn.),  84  N.  AY., 
641-3  (1900),  the  Minnesota  Supreme  Court  had  to  deal  with  u 
])roceeding  to  restrain  the  cutting  of  ice  from  White  Bear  Lake 
as  an  unlawful  depletion  of  the  lake.  The  plaintiff’s  right  was 


no 


siislaiii(‘(l  nTid  ilio  jiidginorit  (‘oiitra  was  reversed.  Tlie  court  in 
dealing  witli  the  suggestion  that  tiie  loss  was  trifling,  said: 

'‘Taking  judicial  notic'e  that  a cubic  foot  of  water  weighs, 
in  i-onnd  nninhers,  02.]  pounds,  and  that  water  expands  one- 
(deventh  in  freezing,  a conp)ntation  sliows  that  75,000  tons  of 
i(‘e,  when  l ediK'ed  to  water,  would  amount  to  about  one-cinarter 
of  an  inch,  when  spi'ead  over  the  entire  area  of  the  lake.  In 
the  12  years,  this  would  amount  to  three  inches.  So  smalf 
an  amount  of  water  was  considered  trifling,  and  not  likely  to 
affect  i)laintiff’s  property.  This  computation,  however,  does 
not  take  into  account  the  amount  of  evaporation  caused  by 
removing  the  ice,  and  thus  exposing  the  water  to  the'  air.” 

Sanhorn  v.  People’s  lee  Co.,  84  N.  W.  Eep.,  643. 

It  sjiecifically  a])pears  in  the  evidence  that  undeveloped  horse- 
])ower  is  being  leased  by  the  Canal  Commissioners  at  the  time 
these  leases  were  made  to  this  same  defendant,  at  from  $10.00 
to  $12.00  per  horsepower. 

(Evidence  of  McDonald,  Abst.,  pp.  277-278.) 

At  this  figure,  applied  to  the  maximum  flow,  the  property  is 
worth  $3,772,750. 

If  from  this,  the  $985,000  of  their  investment  is  deducted,  there 
is  left  $2,787,750. 

We  sought  to  get  from  Mr.  McDonald  the  information  as  to 
the  value  of  the  Joliet  plant,  and  were  toU  by  him  that  it  was 
“in  excess  of  half  a million  dollars”  (Abst.,  p.  280). 

If,  for  large  measure,  the  $787,750  were  set  apart  for  this  pur- 
l)ose,  there  would  be  left  $2,000,000  of  value  shown,  in  the  rights 
obtained  from  the  State. 

An  even  simpler  statement  is  that  of  McDonald  (Abst.,  p.  277) 
that  27,000  cubic  feet  of  water  per  minute  at  an  18  feet  head,  were 
leased  for  $10,000  per  annum.  At  the  same  rate,  and  same  head, 
practically  the  minimum  at  the  proposed  dam,  270,000  cubic  feet 
per  minute,  are  worth  $100,000  per  annum,  and  300,000  cubic  feet 
per  minute  (the  amount  of  the  Sanitary  District  contribution) 
are  worth  $111,111.00,  or  5%  of  $2,222,222.00. 

Taking  the  fall  at  22.5  feet  and  the  how  at  500,000  feet  per 
minute,  or  the  flow  would  be  8,333  feet  ])er  second,  the  number  of 
gross  horsepower  would  l)e  21,306.70,  and  the  net  horsepower 


15,1)71).!)^^  wlii('li  at  $1-  |)(M‘  aniiuDi,  11i(‘  i-at(‘  paid  to  tli(‘  (‘anal 
(\)ininissi()n(‘rs  For  other  povv(‘r  is  woi'lli  $11)1, 75!). lO.  Suhli’aet- 
iiig-  from  this  the  ammal  5%  interest  eliai‘i»e  on  $!)85,000,  ilio  eost 
of  the  work,  we  have  in  round  nnnihers  $144, ()()()  a year  left,  which 
is  5%  on  $1^,880, 000.  This  is  tlie  fair  (aipitalized  valuer  of  the  al- 
leged franchise  of  maintaining  the  dam,  and  using  the  water 
already  turned  into  the  river  by  the  State  through  the  Sanitary 
District  Channel. 

And  for  this  they  gave  $3,700.00. 

S.uch  inadequacy  of  consideration  is  ground  for  declaring  the 
contracts  void. 

Macoupin  Co.  v.  The  People,  58  111.,  191. 

Beall  V.  Dingman,  227  111.,  295. 

And  especially  when  there  is  any  element  of  illegality  in  the 
contracts. 

Henderson  v.  Pahver,  71  111.,  579. 

VIII. 

THE  DECREE  ENTERED  BY  THE  COURT  DOES  NOT  CONFORM  TO  THE  OPIN- 
ION WHICH  THE  COURT  DELIVERED. 

1.  The  decree  is  without  prejudice  to  future  proceedings 
against  the  lease.  Ex.  B.  (Abst.,  pp.  34,  35). 

The  same  infirmities  which  made  the  lease  ^‘Exhibit  illegal 
and  subject  to  future  attack,  viz.,  the  clause  extending  its  life 
beyond  twenty  years,  the  illegal  use  of  canal  property,  the  ab- 
sence of  authority  in  the  Commissioners  and  the  evasion  of  the 
restrictions  in  the  statutes, — all  these  are  found  in  the  Flo  wage 
(contract,  ^‘Exhibit  A,’^  the  Feeder  Lease,  ^‘Exhibit  C,”  and  most 
of  them  in  the  Pole  Line  Lease.  It  is  an  error  to  single  out  this 
lease  and  save  it  for  some  future  attack  but  protect  all  the  others 
against  such  attack. 

2.  It  is  an  error  in  the  application  of  the  theory  of  chancery 
proceedings  for  the  court  to  find  the  necessity  for  saving  out 
the  lease  for  future  attack  and  not  itself  go  on  and  administer 
complete  relief. 


The  Court  during  the  trial  and  argument  ex[)ressly  held 
the  Flowage  (k)ntra('t  itself  void  as  a perpetuity.  (Abst.,  p.  1718.) 

It  is  iiH'onsistent  with  sueh  holding  to  dismiss  the  bill. 

The  eoui't  erred  in  not  treating  the  flowage  contract  and  the 
reu(‘wal  (haiise  in  the  lease  in  the  same  wuy. 

The  court  held  the  flowage  contract  void.  The  language  of  the 
(‘ourt  was  as  follows: 

‘A\s  to  the  contract  itself,  there  being  no  limitation  of  time, 
it  seems  to  me  that  it  is  an  attempt  on  the  part  of  the  Commis- 
sioners to  grant  a right  in  perpetuity  to  Griswold  and  his  as- 
signs to  overflow  the  land;  and  the  grant  of  such  a right  in 
])er})etuity  is  equivalent  to  the  sale  of  an  interest  in  the  land, 
the  sale  of  tlie  easement  is  beyond  the  power  of  the  Commis- 
sioners because  they  could  not  make  any  sale  at  all  of  the  90- 
t'oot  strip.” 

The  bill,  by  paragraphs  VIII,  IX  and  X,  heretofore  specifically 
(]uoted,  and  stated  the  facts  sustaining  the  charge  that  the  flowmge 
contract  was  void.  (See  the  quotations  from  these  allegations  of 
the  bill,  supra.)  The  bill  prayed  for  an  injunction  against  the 
erection  of  the  dam,  as  authorized  by  the  void  contract,  and  for 
general  relief. 

The  prayer  for  general  relief  was  a sufficient  basis  for  a decree 
upholding  those  averments  of  the  bill  and  adjudicating  the  con- 
tract to  be  void.  The  principle  is  well  settled  that  such  relief  as 
the  complainant  is  entitled  to  will  be  granted  nnder  the  prayer 
for  general  relief,  where  the  allegations  and  proofs  establish  a 
case  for  such  relief.  Stanley  v.  Valentine,  79  111.,  544;  Gibbs  v. 
Davies,  168  111.,  205,  at  211;  Penn  v.  Vogler,  182  111.,  76,  at  107-8; 
Hopkins  v.  Snedaker,  71  111.,  499;  Walker  v.  Converse,  148  111.,  622. 

In  the  three  cases  first  above  cited,  viz.,  those  in  the  79th,  168th 
and  182d  111.,  it  was  held  error  that  the  court  refused  to  grant  re- 
lief to  the  complainant,  made  out  a case  conforming  to  the  allega- 
tions of  the  bill,  although  no  specific  prayer  for  that  relief  was 
contained  in  the  bill ; the  prayer  for  general  relief  being  held  suf- 
ficient. 

In  Stanley  v.  Valentine,  79  111.,  544,  at  546,  the  court  said: 

‘^It  is  true,  there  is  no  specific  prayer  that  it  be  canceled  as 


to  lior,  but  the  bill  (‘ontains  the  ^(^iiural  pcayer  I'oi*  r(*li(;r.  Xo 
rule  of  eluuieeiy  ])ractice  is  more  familiar  than  that  otlier  than 
the  specific  relief  prayed  will  be  granted  under  the  general 
prayer,  when  consistent  with  the  facts  stated  in  the  bill.  Now, 
such  relief  in  this  case  is  perfectly  consistent  witii  and  Is  not 
repugnant  to  or  variant  from  the  facts  alleged  and  proved,  and 
we  presume  no  one  would  say  the  prayer  would  be  defective 
had  it  been  specificially  made  in  this  bill.  It  then  follows  that 
it  was  error  in  the  court  below  not  to  have  retained  the  bill, 
and  granted  at  least  that  relief. 

In  Gihhs  v.  Davies,  168  111.,  211,  the  court  said : 

‘‘The  rule  is,  where  a bill  contains  a prayer  for  special  re- 
lief and  also  a prayer  for  general  relief,  the  complainant  may 
he  denied  a decree  for  the  relief  specificially  prayed  for,  and, 
under  the  general  prayer,  be  granted  such  relief  as  he  may  he 
found  entitled  to  have  under  the  allegations  of  fact  made  in 
the  bill  and  the  proof  in  support  thereof.  {Bremer  v.  Canal 
S Dock  Co.,  127  111.,  464;  Hopkins  v.  Snedakcr,  71  id.,  449; 
Vansant  v.  Allniou,  23  id.,  26;  Stanlei/  v.  Valentine,  79  id., 
544.)” 

In  Cook  V.  Martyn,  2 Atkyns,  2,  Lord  Hardwicke  said : 

‘'Praying  general  relief  is  sufficient,  though  the  plaintiff 
should  not  be  more  specific  in  the  prayer  of  the  bill;  and  Mr, 
Kobins,  a very  eminent  counsel,  used  to  say  general  relief  was 
the  best  prayer  next  to  the  Lordds  prayer.’’^ 

The  same  doctrine  a})])lies  to  the  action  of  the  court  in  not 
granting  the  complainant  relief  as  to  the  option  clause  for  a re- 
newal of  the  20-years  lease.  The  court  distinctly  held  this  ])rovision 
of  the  lease  void.  The  opinion  of  the  court  on  this  was  as  follows: 

“Now  as  to  the  effect  of  the  dealings  with  the  Canal  Com- 
missioners. AVhile  it  may  be  i)remature  to  pass  judgment  on 
the  validity  of  the  option  clause  in  the  lease,  yet  in  view  of 
the  thorough  argument  of  tlie  question  I cannot  refrain  from 
expressing  an  opinion  that  I cannot  see  any  basis  in  the  law 
for  that  option  clause.  * * * jf  that  option  clause  be  void, 

and  as  I said  the  court  is  of  the  opinion  that  it  is  void,  no 
rights  could  be  acquired  under  it,  and  after  the  end  of  twenty 
years,  so  far  as  the  rights  of  the  tenant  depend  upon  the  clause 
in  the  lease,  if  any  attempt  should  be  macle  to  carry  them  out, 
the  State  would  have  its  remedy,  and  to  guard  against  any 
possibility  the  other  way,  that  right  may  be  preserved  in  the 
decree.” 

The  final  decree  simply  dismissed  the  bill  without  prejudice  to 


!U 


tlio  of  tlio  State  to  l)ri]ig-  anotliei*  lawsuit  to  o})tain  an  adjudi- 
(‘atiori  tliat  the  renewal  ('lanse  was  void. 

'hliis  was  error. 

I'](jnity  does  not  favor  a innltiihieity  of  suits,  but  seeks  to  avoid 
siK'li  innlti[)lieity.  The  parties  being  before  tlie  court,  and  the 
issue  as  to  tlie  validit}^  of  this  i)rovision  being  clearly  raised,  the 
(‘onrt  should  have  granted  the  relief.  The  eases  above  cited  as  to 
the  S('ope  and  value  of  tite  prayer  for  general  relief  are  strictly 
ap[)Iicable. 

4r.  The  decree  dismissing  the  bill  on  tlie  merits  is  an  adjudica- 
tion against  the  state  on  all  points  and  unless  reversed  is  liable' 
to  lie  pleaded  as  if  it  were  a bar  to  any  future  proceeding. 

The  court  while  holding  the  flowage  contract  and  option  to 
renew  the  lease  both  void,  made  provisions  inconsistent  thereivith, 
and  mconsistent  with  each  other  in  the  decree.  This  was  error. 

As  to  the  option  to  renew  the  lease  for  twenty  years,  the  decree 
dismissed  the  bill  ‘'without  prejudice,  however,  to  the  right  of  the 
State  of  Illinois  to  hereafter  claim  in  any  future  proceeding  that 
the  provisions  of  the  lease  (in  said  information  mentioned  and 
made  Exhibit  B thereof)  made  by  the  Canal  Commissioners  of  Illi- 
nois to  Harold  F.  Griswold  under  date  of  September  second,  1904, 
relating  to  the  making  of  a renewal  at  the  expiration  of  the  term 
of  said  lease  are  void  and  of  no  effect.’^  As  to  the  flowage  con- 
tract the  decree  simply  dismissed  the  bill.  The  bill  by  suitable 
averments  showed  the  invalidity  of  the  flowage  contract  and 
prayed  that  it  be  so  decreed.  A decree  dismissing  the  bill  on  the 
merits  is  an  adjudication  against  the  State  on  this  point  as  well 
as  all  others.  Under  the  doctrine  of  res  judicata  the  decree  deter- 
mines and  concludes  a question  involving  in  the  issues  of  the  con- 
troversy whether  the  court  in  its  judgment  passed  specifically  on 
that  particular  question  or  not. 

Union  Pacific  Ry.  Co.  v.  C.  B.  I.  S P.  By.  Co.,  164  111.,  88, 
and  cases  cited. 

AVe  maintain  that  the  decree  is  erroneous  in  not  expressly  de- 
creeing the  flowage  contract  and  option  to  renew  void,  just  as  the 


115 


court  held  tlieiu  to  be  void  in  tlie  opinion.  An  affirmurK^e  ot  this 
decree  would  expose  tlie  state  to  tlio  adverse  contention  that  as 
to  the  fiowa^e  contract,  the  issues  of  its  validity  have  become  res 
judicata  in  favor  of  the  defendant. 

And  we  do  not  see  how  the  State  can  avoid  that  contention. 

It  has  frequently  been  held  that  the  opinion  of  the  court  deter- 
mines nothing  but  only  the  decree,  and  the  opinion  of  the  court 
that  the  contracts  were  void  does  not  override  or  cure  the  errors 
in  the  decrees  dismissing  the  bill  which  alleged  that  they  were 
void. 

The  flowage  contract  and  the  option  to  renew  the  lease  should 
have  been  treated  in  the  same  way.  Both  were  void;  both  were 
attached  and  stated  to  be  void  by  the  bill ; both  were  held  void  by 
the  opinion  of  the  court  below.  Both  should  have  been  decreed 
void  by  the  decree.  But  the  decree  is  wholly  silent  as  to  one  and 
‘‘without  prejudice’^  as  to  the  other. 

It  will  be  forcibly  contended  contra  in  some  future  proceeding 
that  the  “without  prejudice”  clause  as  to  the  renewal  provision 
shows  that  there  is  no  such  saving  clause  as  to  the  flowage  con- 
tract; and  tlie  familiar  rule  of  construction  that  “ expressio  unhis 
exciusio  alterhis  est”  will  be  invoked. 

A reversal  of  this  error  is  necessary  to  protect  the  State. 

Both  should  have  been  treated  alike.  Both  should  have  been 
decreed  void.  If  the  “without  prejudice”  clause  was  proper  as 
to  the  one,  then  it  is  proper  as  to  the  other. 

5.  The  decree  presents  the  same  inconsistencies  as  to  the  Kan- 
hahee  Feeder  lease.  That  contains  a renewal  provision  in  similar 
but  even  stronger  terms,  viz:  It  is  herein  further  provided  that 
this  lease  may  be  extended  for  a further  period  of  twenty  years  at 
a rent  to  be  fixed  by  an  aj)praisal,  to  be  made  by  three  disinterested 
appraisers,  to  be  ajipointed  by  the  Governor,  and  the  rent  fixed  by 
such  appraisal  shall  be  suliject  to  the  approval  of  the  Canal  Com- 
missioners or  other  proper  officers  of  the  State  at  such  time  hav- 
ing charge  of  the  Canal  property. 


IK) 

It  was  manifest  error  for  the  eonrt  to  hold  one  void  and  not  the 
other, — to  dismiss  without  ])rejiidi(*e  as  to  tlie  one  and  not  as  to  the 
other. 


DIVISION  TWO 


DIVISION  TWO. 


THE  STATE  OF  ILLINOIS  OWNS  THE  WATEKS  OF  THE  DES  PLAINES  RIVER, 
THE  BED  OF  THE  DES  PLAINES  RIVER,  AND  SOME  ADJOINING  LAND  ON 
EACH  SIDE  THEREOF,  IN  SECTION  25,  TOWN  34,  RANGE  8,  AT  THE 
SITE  OF  THE  PROPOSED  POWER-HOUSE  OF  THE  DEFENDANT,  THE 
ECONOMY  LIGHT  AND  POWER  COMPANY. 

I. 

The  Act  of  1839  (February  26)  Makes  the  Meander  Line  the 
Boundary  of  the  Lands  at  the  Site  of  the  Dam  and  Keserves 
THE  Bed  of  the  Kiver  to  the  State.  It  Has  Never  Been  Be- 

PEiALED. 

That  section  25  is  a canal  section,  and  was  not  disposed  of  by 
the  State  until  after  February  28,  1839. 

The  Economy  Light  and  Power  Company,  the  defendant,  pro- 
poses to  construct  a dam  and  power-house  across  the  Des  Plaines 
River  in  the  southeast  quarter  of  Section  number  twenty-five  (25), 
in  Township  number  thirty-four  (34)  North,  in  Range  number 
eight  (8),  East  of  the  Third  Principal  Meridian,  in  Grundy  Coun- 
ty, Illinois,  and  at  the  time  of  the  filing  of  the  bill  in  this  case  had 
actually  commenced  the  construction  of  the  same.  One  of  our  con- 
tentions is  that  the  defendant  does  not  own  the  premises  on  which 
it  proposes  to  construct  this  dam,  but  that  the  title  to  the  same  is 
in  the  State  of  Illinois.  Said  Section  number  twenty-five  is  one  of 
the  sections  of  land  ceded  by  the  government  of  the  United  States 
to  the  State  of  Illinois,  pursuant  to  the  Act  of  Congress,  for  the 
purpose  of  aiding  in  the  construction  of  the  Illinois  and  Michigan 
Canal.  The  grant  of  land  by  the  General  Government  to  the  State 
of  Illinois  was  carried  out  by  the  selection  of  the  odd-numbered 
sections,  being  a strip  ten  miles  wide  throughout  the  length  of  the 
canal,  the  same  being  five  miles  on  each  side  of  the  canal.  The 
Des  Plaines  River  was  meandered  by  the  General  Government. 
Proof  of  that  fact  is  clearly  made  in  the  record. 


118 


HI  HA  H I AN  LA  N I )S liOU  N I )A  H Y (iE  N ERA  L RULE. 

(‘oimiioii  law  rule  is  that  a |)ur(*liaser  of  lands  a})iitting  upon 
a river  takes  fo  the  eenter  tliread  of  the  stream  of  the  river,  and 
this  notwithstanding  tlie  faet  that  the  river  has  been  meandered  by 
government  survey;  but  this  rule  is  not  universal,  Imt  is  modified 
as  follows. 

First— If  the  (juantity  of  land  outside  of  the  meander  line,  or 
between  the  meander  line  and  the  bed  of  the  river,  is  so  much  that 
vrhen  compared  with  the  volume  of  land  within  the  meander  line 
as  to  ('rente  tlie  belief  either  that  tlie  intention  was  to  reserve  the 
bed  of  th.e  I'ivei',  or  that  fraud  or  mistake  has  been  made,  then 
and  under  those  circumstances  the  purchaser  of  the  fractional 
section  or  quarter  section  would  not  take  to  the  thread  of  the 
stream,  but  would  only  take  to  the  meander  line. 

Second — If  the  Government  in  its  survey  of  this  meander  line 
erected  monuments  to  establish  the  meander  line,  or  if  the  Gov- 
ernment in  making  the  survey  of  the  meander  line  platted  the  sec- 
tion or  quarter  section  so  as  clearly  to  show  the  meander  line  upon 
its  plat,  recorded  in  the  Land  Office,  then  and  under  those  condi- 
tions, the  purchaser  of  the  fractional  (|uarter  section  would  only 
take  to  the  meander  line.  This  doctrine  is  clearly  established  in 
the  case  of  Hovck  v.  Yates,  82  111.,  179,  the  same  doctrine  is  main- 
tained in  the  case  of  Canal  Trustees  v.  Haven,  5 Gilman,  548;  also 
7 Wallace  (IT.  S.),  272,  R.  R.  Co.  v.  Sclmrmeier. 

The  amount  of  land  in  the  bed  outside  the  meander  here  (S.  E. 
I Sec.  25,  T.  34,  K.  8)  is  45.28  acres  out  of  160,  sufficient  in  itself, 
under  the  general  rule,  to  indicate  that  it  was  not  intended  to  be 
conveyed.  (The  acreages  given  on  the  Government  plat  of  the 
southeast  quarter  are  94.41  plus  20.31,  i.  e.,  114.72,  which,  deducted 
from  160,  leaves  a shortage  of  45.28  acres  occupied  by  the  river 
bed,  or  more  than  a fourth  of  the  whole.  The  quarter  sections  icere 
platted  and  sold  as  “Fractional”  quarter  sections.  The  only  thing 
to  make  them  “Fractional”  is  the  deduction  of  the  area  of  the  river 
beds.) 


ILT.INOIS  CANAL  LANDS liOUNDAKY' STAI'LTOKY 


Wo  admit  tliiit  tlie  ])r()()fs  in  tiiis  ('aso,  wliatc^vor  llio  j'oal  Tact 
may  liave  been,  do  not  show  that  monuments  wei'o  erected  as  above 
suggested,  or  tliat  tlie  plat  made  by  tlie  General  (lovernrnent  and 
recorded  in  the  Land  Office  clearly  delineated  tlie  meander  line  by 
name  as  distinguished  from  tlie  margin  of  the  stream,  in  facd,  the 
meander  line  is  there  represented  hy  the  maryinal  line  itself;  but 
the  Legislature  of  the  State  of  Illinois,  liy  its  Act  of  February  26, 
1839,  entitled  ^^An  Act  to  Amend  the  Several  Acts  in  Relation  to 
the  Illinois  and  Michigan  Canal,”  approved  and  in  force  February 
26,  1839,  among  other  things  provides  as  follows : 

Section  2,  Paragraph  11. — Lands  situated  upon  streams 
which  have  been  meandered  by  the  surveys  of  public  lands  by 
the  United  States  shall  be  considered  as  bounded  by  the  line 
of  those  surveys,  and  not  by  the  stream.” 

We  call  your  Llonors’  attention  to  the  title  of  this  Act.  It  pur- 
])orts  to  be  an  act  to  amend  the  several  laws  in  relation  to  the  Illi- 
nois and  Michigan  Canal.  In  its  character  it  is  a general  law 
amendatory  of  all  the  laws  pertaining  to  the  Illinois  and  Michigan 
Canal ; and  section  2 of  said  Act  from  which  we  have  quoted  is  en- 
titled ‘‘Condition  of  Sales — Proviso,”  so  that  here  we  have  the 
principal  'and  controlling  Act  of  the  Legislature  of  Illinois  con- 
cerning the  sale  of  these  canal  lands.'  That  the  Legislature  had 
the  right  and  power  to  say  what  part  or  portion  of  said  lands 
should  be  sold,  we  take  it,  will  not  be  questioned.  In  the  exercise 
of  that  power  it  has  ex])ressly  limited  tbe  amount  of  canal  lands 
that  shall  be  sold  in  fractional  (puirter  sections  through  which  a 
stream  or  river  passes,  which  stream  or  river  had  been  meandered 
by  the  General  Government.  The  ])roofs  in  this  record  show  clearly 
that  the  bed  of  tlie  stream  of  the  Des  Plaines  River  and  some  land 
on  each  side  thereof  was  outside  of  the  meander  line,  and  was 
therefore  expressly  reserved  from  sale  by  the  Act  of  the  Legislature 
above  (luoted.  In  other  words,  the  purchaser  of  these  quarter  sec- 
tions was  limited  in  what  he  took  to  that  ])ortion  of  the  quarter 
section  within  the  meander  line. 

(By  “outside  the  meander  line”  is  meant  river-irard^’  from 
the  line;  and  by  “inside  the  meander  line”  is  meant  land-ward^ ^ 
from  the  line.) 


120 


\V(‘  I’ospcH^triily  siihniit  that  this  Act  of  the  Legislature  not  only 
takes  the  place  of  the  monuments  or  recorded  map  tliat  would 
goveiai  under  the  eoniinoii  law  rule,  ))ut  that  it  is  even  stronger  than 
the  common  laic  rule  and  removes  any  question  of  doubt  about  the 
res(‘rvation  to  the  State  of  that  portion  of  these  canal  lands  lying 
outside  of  the  meander  line  in  a (piarter  section  through  which  ran 
a i*iver  that  had  been  meandered.  The  only  ivivers  to  which  the 
Act  coukLapply  are  the  Illinois,  the  Kankakee  and  the  Des  Plaines, 
and  semble  the  (diicago  liiver. 

Unless  something  has  been  done  to  undo  that  statute,  we  think 
it  follows  with  absolute  certaintly  that  the  State  owns  the  bed  of 
the  river  and  that  portion  of  the  lands  between  the  bed  of  the 
river  and  the  meander  line,  in  the  southeast  quarter  of  said 
Section  number  25,  which  is  the  site  of  the  proposed  dam  and 
power-house  of  the  defendant  company. 

The  provision  is  nugatory  unless  these  rivers  are  meandered. 

Defendant  relies  upon  an  Act  of  the  Legislature  of  Illinois, 
passed  Uebrnary  21,  18-t3.  found  in  the  laws  of  1843,  at  page  54,  en- 
titled ^‘An  Act  to  provide  for  the  completion  of  the  Illinois  and 
Micjiigan  Canal  and  for  the  payment  of  the  canal  debt,”  approved 
and  in  force  February  21,  1843.  This  was  an  Act  of  the  Legislature 
to  enable  the  State  of  Illinois  to  borrow  $1,600,000  to  be  used  for 
the  completion  of  the  Canal.  It  will  be  remembered  that  prior  to 
the  passage  of  this  Act  the  work  of  constructing  the  Illinois  and 
Michigan  Canal  had  been  begun  and  some  money  had  been  bor- 
rowed by  the  State  for  the  purpose  of  constructing  this  canal, 
but  that  the  work  had  stopped  for  the  want  of  funds  to  prose- 
cute it,  and  a proposition  was  made  to  the  State  by  persons  who 
had  already  loaned  money  to  the  State  for  the  construction  of  this 
canal  to  furnish  $1,600,000  additional  fund,  which,  we  believe,  was 
then  thought  to  be  sufficient  to  coinplete  the  canal,  although  as  it 
afterwards  developed,  it  wms  not  nearly  enough. 

An  examination  of  this  act  of  1843  will  demonstrate  clearly  that 
it  was  not  a general  laic,  as  was  the  Act  of  1839,  but  was  a special 
Act,  which  in  effect  was  nothing  more  or  less  than  giving  a mort- 
gage on  the  canal  lands  for  the  pa^mient  of  the  money  the  State 
was  then  about  to  borrow.  There  is  nothing  in  this  Act  of  1843 


121 


that  expressly  repeals  tli(‘  A('t  of  IT  it  (l()(‘s  i-(;p(‘al  lli(‘. 

A(*t  of  1831),  it  Is  a repeal  by  iinplic-ation.  33iis  court  has  had  the 
(piestion  of  repeals  !)y  iinplication  before  it,  we  think,  at  least  fifty 
times,  and  has  uniformly  held  that  repeals  by  implication  are  not 
favored.  That  proposition  has  been  stated  by  this  court  very 
many  times  and  in  all  the  varied  forms  of  expression  that  would 
occur  to  the  court  as  they  were  being  considered,  and  the  rule  as 
adopted  by  this  court  is,  that  statutes  will  be  construed  so  as  to 
avoid  the  repeals  by  implication  of  one  act  by  a subsequent  act,  if 
such  repeal  can  be  avoided  by  any  reasonable  hypothesis ; in  other 
words,  if  by  any  reasonable  construction  the  two  statutes  can  each 
remain  in  force,  that  construction  will  be  adopted,  rather  than  to 
construe  that  the  subsequent  statute  will  repeal  the  former  by  im- 
plication. We  have  cited  in  our  brief  a large  number  of  cases 
wherein  the  proposition  has  been  considered  by  this  court,  and  in 
all  of  them  the  proposition  above  suggested  has  been  maintained, 
and  in  many  of  them  the  very  strongest  language  is  used  by  the 
court;  for  instance,  in  99  111.,  439,  Cit^  of  East  St.  Louis  v.  Max- 
ivell,  this  court  uses  this  language: — ‘‘A  re])eal  of  an  existing  law, 
by  implication,  is  not  favored,  and  it  is  a familiar  rule,  in  the  con- 
struction of  statutes,  that  the  repugnance  between  statutes  must 
be  so  clear  and  plain  that  they  cannot  be  reconciled  to  justify  a 
resort  to  this  doctrine,’’  and  cites  Bruce  v.  Schuyler,  4 Gilman, 
221;  Hume  v.  Gossett,  43  111.,  297;  and  in  People  v.  Murphy,  202 
111.,  496,  this  court  used  the  following  language:  ‘‘If  the  fatter 
Act  can  be  construed  as  a modification  or  exception  to  the  earlier 
one,  that  course  is  to  be  followed  and  both  acts  regarded  as  sub- 
stituting enactments.  The  repeal  by  implication  of  a statute  by 
a subsequent  enactment  will  not  be  decreed  if  it  can  be  avoided  hy 
any  reasonable  hypothesis.’’^ 

Also  in  Volume  23,  page  489,  of  the  American  and  English  En- 
cyclopedia of  Law,  First  Edition,  we  find  the  following  language  : 

“I\e])eals  by  imi)lication  are  not  favored,  and  will  not  be  de- 
creed unless  it  is  manifest  that  the  Legislature  so  intended. 
As  laws  are  presumed  to  be  passed  with  delil)eration  and  with 
full  knowledge  of  existing  laws  on  the  subject,  it  is  but  reason- 
able to  conclude  that  in  passing  a statute  it  was  not  intended 
to  interfere  with  or  abrogate  any  former  law  relating  to  the 
same  matter,  unless  the  re])ugnancy  between  the  two  is  not 


1 


only  ii  rc'c'oiici lal)Ie,  hut  also  oknir  and  (^onvinoing’,  and  follow- 
ing' iHH'ossai'ily  from  the  language  used,  unless  tlie  later  act 
fnlly  embraces  the  snl)j(;(‘t  mattei*  of  the  earlier,  or  unless  the 
reason  for  the  eai'liei*  a(*t  is  beyond  ])eradventure  removed. 
Hence  evei'y  effoit  must  l)e  used  to  make  all  acts  stand,  and 
if  by  any  reasonable  construction  tliey  (‘an  be  reconciled,  the 
latei'  a(‘t  will  not  o})erate  as  a re])eal  of  the  earlier. 

‘Mt  is  freiiuently  found  that  the  conflict  between  two.  statutes 
is  apparc^nt  only  as  their  objects  are  different,  and  when  the. 
language  of  each  is  restricted  to  its  own  object  they  run  in 
))arallel  lines  without  meeting;  or  the  later  act  can  he  con- 
strued as  a modification  of  or  exception  to  the  earlier  one,  thus 
avoiding  all  conflict  between  the  two.” 

'The  Act  of  1843,  Section  8,  provides: 

^‘The  said  Board  of  Trustees  of  the  Illinois  and  Michigan 
Canal,  when  duly  appointed  and  elected,  * * * so  far  as 

not  inconipatihle  with  this  Act,  shall  possess  all  the  powers  and 
])erform  all  the  duties  conferred  upon  the  Board  of  Commis- 
sioners of  Illinois  and  Micliigan  Canal  by  the  Act  entitled  C\n 
Act  for  the  construMion  of  the  Illinois  and  Michigan  Canal,’ 
apx)roved  January  9,  183(1,  and  the  Acts  supplemenfary  and 
amendafory  thereto.” 

Tlie  Act  of  1839  being  amendatory  of  all  lav;s  pertaining  to  the 
Illinois  and  Michigan  Canal,  is  necessarily  amendatory  of  the  Act 
of  1836.  Under  the  Act  of  1836  there  were  Canal  Commissioners 
of  the  Illinois  and  Michigan  Canal.  By  the  Act  of  1839  they  were 
limited  in  their  sales  of  these  canal  lands  in  sections  through  which 
there  ran  a river  that  had  been  meandered.  Their  duties  under 
the  Act  of  1839  and  all  previous  Acts  as  amended,  as  affecting  the 
sale  of  these  fractional  quarter  sections  through  which  ran  a 
meandered  river,  limited  them  to  the  sale  of  that  portion  of  said 
quarter  section  within  the  meandered  line. 

Not  only  does  the  Act  of  1843  fail  to  affirmatively  repeal  the 
Act  of  1839,  as  we  contend,  but  Section  8 of  said  Act  of  1843,  as 
above  (pioted,  appears  to  affirmatively  limit  the  power  of  the  trus- 
tees appointed  by  the  Act  of  1843,  with  reference  to  the  sale  of 
these  lands,  to  the  power  existing  prior  to  the  Act  of  1843  in  the 
Canal  Commissioners. 

Section  10  of  the  Act  of  1843,  said  Act  being  found  in  the  Laws 
of  1843,  page  54,  is  the  particular  section  under  which  it  is  claimed 
that  the  repeal  of  the  Act  of  1839  is  effected,  and  the  lands  in  these 


fractional  (luartcr  sections  tlironi»-li  wliic'.li  a incan(l(‘r(Ml  riv(n'  ran, 
})assc(l  to  the  (‘anal  trustees,  and  would  be  sold  l)y  them  in  the  sah^ 
of  the  fractional  (Quarter  sections.  l^\)r  (convenience  of  tine  court, 
we  now  (|uote  said  Section  10,  as  folloms : 

“For  the  purpose  of  placing  in  the  hands  of  trustees  full 
and  aiin])le  security  for  the  payment  of  said  loan  authorized 
by  this  act,  and  the  interest  thereon,  as  well  as  for  securing  a 
preference  in  the  payment  of  the  canal  bonds  and  other  evi- 
dences of  indebtedness  issued  by  this  State  for  the  y)urpose 
of  aiding  in  the  construction  of  the  Illinois  and  Michigan 
Canal  as  may  be  owned  by  the  subscribers  to  the  said  loan,  the 
State  does  hereby  irrevocably  grant  to  the  said  Board  of  Trus- 
tees of  the  Illinois  and  Michigan  Canal  the  heel  of  the  said  Illi- 
nois and  Michigan  Canal,  and  the  land  over  which  the  samc^ 
passes,  including  the  banks,  margins,  towpaths,  feeders,  basins, 
right  of  way,  locks,  dams,  water  power  structures,  stone  exca- 
vated and  stone  and  materials  quarried,  purchased,  or  col- 
lected for  its  construction;  and  all  of  the  property,  right,  title 
and  interest  of  the  State  of,  in  and  to  the  said  canal,  with  all 
the  hereditaments  and  appurtenances  thereunto  belonging, 
or  in  any  wise  appertaining,  and  also  all  of  the  remaining  lands 
and  lots  belonging  to  the  said  canal  f unds,  or  which  hereaftei* 
may  be  given,  granted  or  donated  by  the  General  Government 
to  the  State,  to  aid  in  the  construction  of  the  said  canal  and 
the  buildings  and  erections  belonging  to  the  State  thereon  sit- 
uated; the  said  Board  of  Trustees  to  have,  hold,  possess  and 
enjoy  the  same  as  fully  and  as  absolutely  in  all  respects,  as  the 
State  now  can  or  hereafter  could  do,  for  the  uses,  ]mrposes  and 
trusts  hereinafter  mentioned.”  * * * (Here  follows  some 

reservations  unimportant  in  the  construction  of  this  section.) 

AVe  call  close  attention  to  this  language  used  in  said  Section  10. 
Referring  to  the  lands  other  than  that  occupied  by  the  canal  itself, 
it  says,  “Also  all  the  remaining  lands  and  lots  belonging  to  said 
canal  funds,  etc.”  We  respectfully  suggest  that  if  the  lands  ceded 
by  the  General  Government  to  the  State  of  Illinois  to  aid  in  the 
construction  of  this  canal  is  to  come  under  the  head  of  the  word 
^Crinal  fund,”  as  used  in  said  Section  10,  then  we  also  respectfully 
suggest  that  the  Legislature  by  the  Act  of  1839  removed  the  bed  of 
meandered  rivers  from  this  canal  fund,”  and  also  that  portion 
of  fractional  quarter  sections  through  which  a meandered  stream 
ran,  lying  without  the  meandered  line,  or  between  the  meander 
line  and  the  bed  of  the  river,  so  that  in  1843,  at  the  time  of  the 
})assage  of  this  Act  enabling  the  State  to  borrow  this  money,  the 


land  outside  of  the  meander  line  in  these  fractional  quarter  sec- 
tions, tlirougli  wlncli  ran  a meandered  stream,  liad  been  taken  out 
of  the  ‘‘canal  fund”  and  would  not  be  placed  back  into  that  fund 
by  inii)lication.  Jt  certainly  would  require  the  affirmative  expres- 
sion of  the  Legislature  to  undo  the  Act  of  1839  in  order  to  reinvest 
the  Canal  Commissioners,  or  Canal  Trustees,  as  they  are  called 
in  the  Act  of  1843,  to  make  sale  of  that  portion  of  these  lands  that 
have  been  thus  expressly  reserved. 

The  building  of  the  Illinois  and  Michigan  Canal  was  under- 
taken by  the  State  of  Illinois.  It  was  a matter  of  great  value  to 
the  lands  of  the  State,  and  particularly  those  within  ready  reach 
of  the  line  of  the  canal.  The  Legislature  had  to  determine  the 
length,  breadth  and  depth  of  this  canal;  it  had  to  provide  tow-paths 
and  feeders,  it  had  to  fix  grades,  it  had  to  provide  for  all  of  the 
conditions  of  a successful  canal  or  the  whole  enterprise  would  be 
a failure.  With  the  canal  ditch  dug,  the  tow-path  constructed,  the 
feeders  provided,  and  all  and  everything  done,  then  without  a sup- 
ply of  water  for  it,  the  whole  enterprise  would  be  a failure.  What 
more  natural,  under  these  conditions,  than  that  the  State  would 
undertake  to  preserve  the  waters  of  the  State,  or  that  portion  of 
waters  adjacent  to  the  line  of  the  canal,  for  the  use  of  the  State, 
for  the  supply  of  water  for  the  canal  ? It  did  protect  that  supply  of 
water  by  the  Act  of  1839,  wherein  it  provides  that  the  bed  of  the 
streams  and  all  of  the  land  outside  of  the  meander  line  in  these 
fractional  quarter  sections  through  which  meandered  streams 
passed,  should  not  be  sold,  but  should  be  reserved  to  the  State. 
Can  a statute  so  important  as  that  to  the  very  life  of  the  canal  be 
repealed  by  implication,  where  there  is  not  in  any  language  in  the 
two  Acts  of  1839  and  1843,  that  measure  of  repugnance  that  nec- 
essarily makes  the  one  repeal  the  other. 

This  statute  of  1839  was  passed  at  the  very  time  when  the 
State  changed  its  policy  from  that  of  the  “Beep  Cut”  to  be  fed 
solely  from  Lake  Michigan,  to  the  “ Shalloiv  Cut”  to  be  fed  from 
the  rivers.  (See  summary  of  Canal  History  herein.) 

If  the  language  of  Section  10  of  the  Act  of  1843  is  to  be  given 
the  force  contended  for  by  counsel  for  defendant,  then  the  Trus- 
tees of  the  Illinois  and  Michigan  Canal  would  have  had  the  right 


and  tlio  power  to  sell  tlie  oanal  itself  to  i)ay  this  debt,  yet  we  v(ni- 
tnre  the  statement  that  snob  an  antliority  was  not  only  not  eon- 
templated  by  the  Legislature,  but  that  the  courts  would  never 
eonstrne  this  grant  to  mean  any  siicli  think  as  tliat.  The  State 
was  trying  to  get  a canal  and  it  mortgaged  its  securities  to  pay 
for  its  construction  by  this  Act  of  1843,  but  we  respectfully  submit 
that  the  sale  of  the  canal  itself  or  the  sale  of  that  which  had  been 
expressly  reserved  by  the  State  to  enable  the  canal  to  be  operative, 
namely,  the  supply  of  water  for  it,  did  not  pass  to  the  Canal  Trus- 
tees with  power  of  alienation.  The  bed  of  the  stream  passed  in- 
deed as  a part  of  the  canal  and  came  back  as  part  of  the  canal. 

By  Section  13  of  the  Act  of  1843,  it  is  provided  as  follows : 

^^The  said  Board  of  Trustees,  when  appointed,  are  hereby 
authorized  to  take  possession  of  the  said  canal,  lands,  prop- 
erty and  assets,  granted  to  them  by  this  Act  and  proceed  to 
complete  the  same.  They  are  hereby  authorized  to  make  such 
changes  and  alterations  of  the  original  plan  of  said  canal  as 
they  may  deem  advisable,  without  reducing  its  present  ca- 
pacity or  materially  changiug  its  present  location,  having  due 
regard  to  economy,  permanency  of  the  work,  and  an  adequate 
supply  of  ivater  at  all  seasons.’^ 

This  is  another  expressed  manifestation  of  the  purpose  of  the 
Legislature  to  preserve  to  the  State  its  water  supply. 

The  Act  of  1839  provides  many  benefits  for  the  State  of  Illinois 
and  for  the  lands  adjacent  to  the  canal.  These  provisions  of  the 
Act  of  1839  were  as  beneficial  and  helpful  to  the  lands  adjacent 
thereto  after  the  passage  of  the  Act  of  1843,  as  they  were  before 
the  passage  of  that  act.  In  other  words,  the  benefits  of  the  pro- 
visions of  the  Act  of  1839  are  continuing  and  are  not  in  any  way 
contravened  by  the  Act  of  1843.  To  illustrate.  Section  6 of  the 
Act  of  1839,  briefly  stated,  provides  security  to  the  State  against 
contractors.  Section  13  of  said  Act  protects  the  State  in  the  case 
of  a failure  or  abandonment  of  a contract  by  contractors.  Section 
17  of  said  Act  provides  safeguards  to  the  State  in  respect  to  the 
matters  therein  mentioned.  Section  21  of  said  Act  is  a safeguard 
to  the  State  in  letting  contracts: — ^Tlie  following  subsections  of 
Section  2,  namely,  subsection  1,  subsection  2,  subsection  4,  subsec- 
tion 5,  subsection  6,  subsection  7,  subsection  8,  subsection  9,  sub-^ 
section  10,  subsection  12,  all  contain  provisions  safeguarding  the 


interests  of  tlie  State.  If  tlie  eontention  of  eoiinsel  is  correct  that 
the  A(*t  of  184.‘)  repeals  the  Act  of  1839,  tlien  all  of  tliese  reserva- 
tions foi-  the  l)enefit  of  the  State  were  destroyed. 

Clearly,  we  submit,  the  policy  of  the  State,  witli  reference  to  its 
waters  through  tliese  canal  lands,  was  determined  by  the  Act  of 
1839.  The  ])olicy  was  to  preserve  to  the  State  for  the  benefit  of 
all  tlie  jieople,  tlie  beds  of  these  streams  of  water,  to  the  end  that 
the  supply  of  water  should  not  in  any  way  be  cut  off  or  interfered 
with,  and  the  canal  itself  thus  rendered  a failure. 

The  Act  of  1843  provides  for  the  borrowing  of  money  and  pledg- 
ing the  property  of  the  State  for  its  payment  and  was  not  incon- 
sistent with  the  policy  of  the  State  to  preserve  its  waters  so  as  to 
retain  to  itself  the  bed  of  the  streams,  and  the  lands  outside  of 
the  meander  line  in  these  fractional  quarter  sections  through  which 
ran  a meandered  stream.  The  canal,  with  its  locks  and  aqueducts 
and  its  feeders  and  these  beds  of  the  streams  were  all  mortgaged 
together  to  the  trustees,  and  all  reverted  together  to  the  State 
after  the  canal  debt  was  paid.  That  policy  has  not  been  changed 
at  any  time,  but,  on  the  contrary,  has  been  reaffirmed  by  the  Leg- 
islature by  declaring  certain  rivers  navigable,  by  the  various  Acts 
preserving  the  Illinois  and  Michigan  Canal  and  the  various  Acts 
of  permission  to  different  persons  to  build  a bridge  over  the  Des 
Plaines  Eiver  and  other  streams,  thus  constantly  manifesting  its 
purpose  to  exercise  its  power  over  and  control  of  these  streams  of 
water. 

The  interests  of  the  whole  people  of  the  State  require  that  the 
policy  of  the  State  as  manifested  in  this  behalf  by  the  several  Acts 
of  the  Legislature  should  be  maintained.  There  is  nothing  in  the 
Act  of  1843  expressly  abandoning  that  policy  or  repealing  the 
provisions  of  the  Act  of  1839  pertaining  thereto.  The  two  Acts 
of  1839  and  1843  can  both  stand  in  harmony  with  that  public  policy. 
There  is  no  necessary  destruction  of  that  policy  by  the  Act  of  1843. 
Can  it  then  be  held  that,  by  implication,  the  statute  of  1839,  so  im- 
portant to  the  people  of  the  State,  shall  be  held  to  be  repealed  by 
implication?  To  do  so,  we  respectfully  submit,  would  be  to  work  a 
great  wrong  and  injury  to  the  people  of  the  State.  To  refuse  to 
so  hold,  would  work  no  hardship  to  the  individuals  of  the  State 


\27 


becaiiso  ilioy  aro  oacli  and  all  fairly  (‘harmed  wiili  noilco  of  lli(i 
fact  that  tlio  policy  and  ex[)ress  le£>-islati()n  of  tlio  State  was  and 
is  to  retain  the  beds  of  these  streams  foi*  tlie  use  of  the  whole  peo- 
l)le  of  the  State,  and  the  purciiaser  of  tliese  fractional  cpiarter  sec- 
tions through  which  a meandered  river  ran  had  no  right  to  re- 
gard the  policy  of  the  State  as  entirely  changed  and  to  claim  that 
in  the  purchase  of  one  of  these  fractional  quarter  sections  he  was 
buying  the  bed  of  the  stream.  Upon  this  phase  of  the  subject,  we 
respectfully  submit  that  the  State  of  Illinois  has  not  parted  with 
the  bed  of  the  Des  Plaines  River  nor  with  that  portion  of  the  lands 
between  the  meandered  line  and  the  stream  in  the  southeast  quar- 
ter of  Section  number  twenty-five  (25),  in  Township  number 
thirty-four  (34)  North,  in  Range  number  eight  (8)  East  of  the 
Third  Principal  Meridian  in  Grundy  County,  Illinois,  over  and 
upon  which  the  defendant  company  proposes  and  has  actually 
begun  the  erection  of  a dam  and  power-house. 

IL 

THE  CANAL  LEGISLATION  SHOWS  SEVERAL  RENEWALS  OF  THE  ACT  OF  1839, 
AND  A LEGISLATIVE  INTENT  AND  POLICY  TO  KEEP  IT  IN  FORCE. 

Caml  Lands — Legislation  on  Sales  of. 

An  examination  of  the  Canal  Acts  shows  that  the  policy  of  the 
State  on  Canal  Lands  as  settled  by  the  x\ct  of  1839  has  never  been 
changed. 


Acts  of  Congress. 

1822.  1.  An  Act  to  authorize  the  State  of  Illinois  to  open  a 

canal  through  the  public  lands  to  connect  the  Illinois  River  with 
Lake  Michigan.  (Approved  and  in  force  March  30,  1822.)  (Stead’s 
Canal  Comp.,  p.  1.) 

1827.  2.  An  Act  to  grant  a quantity  of  land  to  the  State  of 

Illinois  for  the  purpose  of  aiding  in  opening  a canal  to  connect  the 
waters  of  the  Illinois  River  with  those  of  Lake  Michigan.  (Ap- 
proved and  in  force  March  2,  1827.)  {Id.,  p.  2.) 

1833.  3.  An  Act  to  amend  an  Act  entitled,  ‘‘An  Act  to  grant  a 

quantity  of  land  to  the  State  of  Illinois,  for  the  purpose  of  aiding 


128 


ill  ojieiiiiig  a (‘anal  to  ('oiinect  tlie  waters  of  Illinois  River  with 
those  of  Lake  Michigan, ” and  to  allow  further  time  to  the  State 
of  Oliio  for  commencing  the  Miami  Canal  from  Dayton  to  Lake 
Lrie.  ( A|)])rov(‘(l  and  in  force  March  2,  1833.)  (Id.,  p.  3.) 

1842.  4.  An  Act  to  authorize  the  States  of  Indiana  and  Illi- 
nois to  select  certain  quantities  of  land  in  lieu  of  like  quantities 
heretofore  granted  to  the  said  states  for  the  construction  of  the 
Wabash  and  Erie  and  the  Illinois  and  Michigan  Canals.  (Ap- 
proved and  in  force  August  29,  1842.)  {Id.,  p.  3.) 

1854.  5.  An  Act  to  authorize  the  State  of  Illinois  to  select  the 

residue  of  the  lands  to  which  she  is  entitled  under  the  Act  of 
second  of  March,  eighteen  hundred  and  twenty-seven,  granting 
land  to  aid  that  state  in  opening  a canal  to  connect  the  waters  of 
the  Illinois  River  with  those  of  Lake  Michigan.  (Approved  and 
in  force  August  3,  1854.)  {Id.,  p.  4.) 

Canal  Lands — Illinois  Legislation  on  Sales  of. 

1829.  An  Act  to  provide  for  constructing  the  Illinois  and  Michi- 
gan Canal.  (Approved  and  in  force  January  22,  1829.)  (Stead’s 
Canal  Comp.,  p.  14.) 

Section  7 authorizes  sales  of  any  and  all  lands,  without  restric- 
tion, at  public  or  iDrivate  sale,  on  same  terms  and  conditions  as  of 
sales  of  public  lands  by  Federal  Government. 

Section  10  authorizes  the  Commissioners  to  take  and  use  any 
canal  lands,  and  ivalers  and  streams  thereon,  for  the  canal. 

1831.  An  Act  amendatory  of  preceding  Act.  (Approved  and 
in  force  February  15,  1831.)  (Id.,  p.  17.) 

‘‘Section  11.  Nothing  in  this  Act,  or  the  one  to  which  this 
is  an  amendment,  shall  be  so  construed  as  to  prevent  said  com- 
missioners, or  their  successors  in  office,  from  using  any  stone, 
timber,  ground  or  ivater  or  other  material,  for  the  purpose  of 
making  or  aiding  said  canal,  which  may  be  required  in  its  con- 
struction ; and  in  all  sales  of  said  lands  this  right  is  hereby  ex- 
pressly reserved  free  from  any  cost,  charge  or  liability  tchal- 
ever.’^ 

The  right  to  take  and  use,  for  canal  purposes,  without  cost,  the 
waters  passing  through  the  canal  lands  has  been  reserved  from  the 
beginning  and  is  still  reserved. 


121) 


181)1).  All  Act  to  aholisli  the  oniee  oi*  (Janal  (JoiniiiissioiK'rs.  (II. 
L.  18, *).*),  |).  11,*^;  Stead’s  (tanal  Com]).,  p.  21.) 

183(5.  All  Act  for  the  construction  of  the  Illinois  and  Michigan 
Canal.  (Approved  and  in  force  danuary  9,  18,3(5.)  (Stead’s  ('anal 
Comp.,  p.  30.) 

“Sec.  21.  It  shall  be  lawful  for  tliem  to  enter  upon  and 
use  any  lands,  ivater,  streams  and  materials  of  any  descri))- 
tion  necessary  for  the  prosecution  of  the  works  contemplated 
by  this  Act.” 

Sections  33,  34  and  35  authorize  sales  of  certain  specified  lands 
with  interest-bearing  deferred  payments,  and  “a  failure  to  jiay 
such  interest  or  the  residue  of  such  principal  within  twenty  days 
after  the  same  or  any  instalment  thereof  becomes  due,  shall  for- 
feit to  the  State  for  the  benefit  of  the  canal  fund,  the  said  lot  or 
lots,  and  all  claim  thereon/^ 

The  Act  of  1836  was  amended  by  the  Acts  of  1837,  1839  and 
1840.  . 

1837.  Act  of  March  2,  amending  Act  of  January  9,  1836. 
(Stead’s  Canal  Comp.,  p.  38.) 

“Sec.  10.  The  Canal  Commissioners  shall  insist  upon 
the  right  of  the  State  to  the  right  of  way,  through  and  upon  all 
lands  heretofore  sold  or  granted  by  the  State,  and  also  the  use 
of  all  ivater  and  materials  required  in  the  construction  of  the 
canal  ^ 

By  these  Acts  the  Legislature  reserved  from  sale  the  right,  title 
and  use  of  the  waters  and  streams  running  through  canal  lands, 
free  of  claims  for  damages  against  the  State  for  their  use. 

1837.  An  Act  to  provide  for  the  sale  of  certain  canal  lands  and 
for  other  purposes  (Approved  and  in  force  July  21,  1837)  (Stead’s 
Canal  Comp.,  p.  48)  authorized  sales  of  lands  sufficient  to  provide 
$400,000  by  payments  in  instalments. 

1839.  An  Act  to  ])rovide  for  selling  certain  water  lots  and 
privileges  on  the  Illinois  and  Michigan  Canal.  (Approved  and 
in  force  Feb.  22,  1839.)  (Stead’s  Canal  Comp.,  p.  52.) 

1839.  Feb.  26.  An  Act  to  amend  the  several  laws  in  relation  to 
the  Illinois  and  Michigan  Canal.  (iVpproved  and  in  force  Feb. 
26,  1839.)  (Stead’s  Canal  Comp.,  p.  59.) 


S(‘(‘ti()n  1 ropotils  provisions  on  sales  for  y)ayments  in  instal- 
ments. 

Section  2,  ('lanse  5,  j)rovi(les  for  forfeiture  in  case  of  violation  of 
terms  l)y  pnrcliaser. 

The  remainder  of  the  Act  contains  the  following,  among  other 
provisions : 

Sec.  2,  cl.  h.  ^‘That  no  stream  of  water  passing  through 
the  canal  lands  shall  pass,  by  tlie  sale,  so  as  to  deprive  the 
State  from  the  use  of  such  water,  if  necessary  to  supply  the 
canal,  without  charge  for  the  same.  * * * 

‘^11.  Lands  situated  upon  streams  which  have  been  mean- 
dered by  the  surveyors  of  public  lands  by  the  United  States 
shall  be  considered  as  bounded  by  the  lines  of  those  surveys, 
and  not  by  the  stream. 

a 12.  * * * Upon  the  terms  and  conditions  specified  in 

this  Act,  the  hoard  shall  execute  the  laws  heretofore  enacted 
authorizing  sales  of  canal  lots  and  lands,  notivithstanding  the 
time  limited  for  those  sales  may  have  expired.  * * * 

^^(No  Damage  Allowed  for  Water.)  Sec.  17.  No  damage 
shall  be  allowed  by  any  person  for  the  use  of  water  in  any 
river  or  stream,  the  bed  of  which,  or  some  part  thereof,  does 
not  belong  to  tlie  claimant,  nor  for  the  use  of  water  in  any 
stream,  whether  navigable  or  not,  if  the  boundaries  of  the  land 
through  which  it  passes  are  fixed  by  landmarks,  and  not  by  the 
stream  itself. 

^‘(Islands,  etc.,  Deemed  Canal  Lands.)  Sec.  18.  Islands 
and  inundated  lands,  situated  within  the  limits  of  sections  of 
lands  granted  to  the  State  by  the  United  States,  shall  be 
deemed,  occupied,  and  held  as  canal  lands.’’ 

The  Act  of  1839  was  an  amendment  to  all  previous  canal  statutes. 

Thereafter  the  previous  statutes  operated  as  if  the  terms  of  the 
Act  of  1839  had  been  a part  thereof  from  the  beginning. 

Holhrooh  v.  Nichol,  36  111.,  161,  at  167. 

Turney  v.  Wilton,  36  111.,  385,  at  393. 

Endlich  on  Statutes,  Sec.  294. 

Blair  v.  Chicago,  201  U.  S.,  400,  at  475. 

Richland  Co.  v.  People,  3 111.  App.,  216, 

Reg.  V.  Overseers,  3 El.  & El.  (107  E.  C.  L.),  224. 

U.  8.  V.  SapinTvOiv,  90  F.  E.,  654. 

Farrell  y.  State,  54  N.  J.  L.,  421. 

People  V.  Circuit  Judge,  37  Mich.,  287. 


Tlie  object  oC  reserving  tlie  river  bed,  like  tliat  of  reserving  tlie 
water,  was  to  insure  the  power  and  opportunity  for  obtaining  an 
ample  supply  of , water  (and  accessibility  thereto)  for  the  canal. 
It  became  in  substance  a part  of  the  canal. 

3840.  An  Act  to  amend  the  several  laws  in  relation  to  the  Illinois 
and  Michigan  Canal  (approved  and  in  force  Feb.  1,  1840)  (Stead’s 
Canal  Comp.,  p.  70),  required  the  sale  of  sufficient  land  to  pay  in- 
terest on  the  canal  debt  and  added: 

‘‘Sec.  1.  * * * Sales  made  under  this  Act  shall  be  con- 

ducted and  under  the  same  restrictions  as  required  by  the 
Act  to  which  this  is  an  amendment  * * 

And 

“Sec  2.  * * * Sales  made  under  the  provisions  of  this 

Act  shall  be  subject  to  the  same  forfeitures  and  restrictions  as 
required  in  the  several  Acts  authorizing  the  sales  of  canal 
lands.” 

1843.  An  Act  to  provide  for  the  completion  of  the  Illinois  and 
Michigan  Canal  and  for  the  payment  of  the  canal  debt.  (Approved 
and  in  force  Feb.  21,  1843)  (L.  1843,  p.  54;  Stead’s  Canal  Comp., 
p.  76),  conveyed  by  way  of  mortgage,  the  canal,  with  all  its  appur- 
tenances, including  among  such  appurtenances  the  right  to  take 
the  water  from  the  river,  and  the  reserved  river-bed. 

No  power  of  sale  of  the  canal  or  its  appurtenances  was  incorpo- 
rated in  the  Act. 

Section  10  reserved  lands  previously  sold,  whether  theretofore 
or  thereafter  forfeited  or  relinquished,  and  added: 

“Sec.  10.  * * * The  said  land  and  lots  hereby  reserved 

sliall,  within  three  months  after  the  passage  of  this  Act,  be 
appropriated  as  is  provided  in  the  thirteenth  section  of  this 
Act,  and  sold  in  accordance  with  the  latvs  of  this  State  regulat- 
ing the  sale  of  canal  lands. 

Sec.  13  provides  for  sales,  but — 

“None  of  the  lots,  lands  or  water-powers  so  granted  to  the 
said  trustees  shall  be  sold  until  three  months  after  the  com- 
pletion of  the  said  canal;  the  said  lots,  land  and,  water-powers 
shall  then  he  offered  for  sale  hg  the  said  trustees  at  public 
auction,  in  lots  and  legal  subdivisions  once  or  oftener  in  each 
year  for  the  four  succeeding  years;  said  sales  to  be  made  for 
cash  or  on  credit  in  the  manner  prescribed  in  the  Act  of  the 
ninth  of  January,  eighteen  hundred  and  thirty-six.  * * * 

At  the  expiration  of  the  said  four  years,  the  said  trustees 


sliall  expose  the  residue  of  said  lands  wliicli  may  remain  on 
liand  to  sale  at  sneii  times  and  in  sueli  manner  as  tliey  may 
deem  proi)er. 

‘‘The  said  Board  of  Trustees  are  authorized  to  convey  lands 
and  water-powers  sold  hy  them  as  aforesaid,  after  tlie  y)ur- 
ehase  (money)  for  tlie  same  he  fully  paid,  but  not  1)efore 

Sections  18  and  19  of  the  Act  read  as  follows : 

“Sec.  18.  This  Act  shall  go  into  effect,  and  the  said  canal 
[)roperty  and  assets  shall  vest  in  the  said  trustees,  as  herein- 
before granted,  whenever  and  as  soon  as  the  full  amount  of 
the  said  loan  shall  be  subscribed  for,  and  the  trustees  elected 
as  hereinbefore  provided;  and  when  this  Act  goes  into  effect, 
so  much  of  the  Acts  heretofore  passed  by  the  Legislature  of 
this  State  in  relation  to  the  Illinois  and  Michigan  Canal,"  and 
the  canal  lands  and  property,  as  conflicts  with  the  provisions 
of  this  Act,  are  hereby  repealed. 

“Sec.  19.  "Whenever  the  trust  created  by  this  Act  shall  have 
been  fully  executed  and  performed  by  the  said  trustees,  the  said 
canal  and  the  canal  properly  that  may  then  remain,  shall  re- 
vert to  ihe  State;  and  the  State  hereby  reserves  the  right  of 
paying  off  the  bonds  and  certificates  to  be  paid  to  the  said 
trustees,  and  the  incidental  expenses  paid  by  them,  and  the 
interest  thereon;  and  the  said  trustees  shall  then  resign  the 
said  canal,  and  the  remaining  canal  property  and  assets  to 
the  State.” 

The  Act  of  1836  had  already  been  amended  by  the  Act  of  1839, 
and  the  amendment  was  for  all  purposes  part  of  the  original  Act 
(36  111.,  161)  ; and  when  in  1843  the  trustees  were  authorized  to 
sell  “in  the  manner  prescribed  in  the  Act  of  the  9th  of  January, 
1836,” — ^that  Act  of  1836  stood  as  amended  in  1839 — and  the  trus- 
tees were  authorized  to  sell  in  the  manner  prescribed  by^  the  Act  of 
1836  as  amended  in  1839. 

The  trustees  were  forbidden  to  sell  any  lands  at  all  until  after 
building  the  canal. 

1843.  March  4.  “An  Act  for  leasing  the  water-power  of  the 
Illinois  and  Michigan  Canal.”  (L.  of  1843,  p.  63;  Canal  Comp.,  pp 
86-7.) 

This  authorized  the  trustees  to  dispose  of  certain  surplus  water 
and  the  lands  on  which  the  same  could  be  used,  “on  the  terms  pro 
vided  by  an  Act  to  provide  for  disposing  of  water  lots  of  the  11  li 
nois  and  Michigan  Canal,”  approved  February  22,  1839. 


The  Act  of  Febnmiy  22,  3839,  had  theretofore  })ecni  amended  f)y 
the  Act  of  Pehriiary  2G,  1839,  restricting  sales  })eyoTid  tlie  meander 
line. 

Water  lots,  thereafter  sold,  whether  under  the  Act  of  February 
22,  1839,  or  March  4,  1843,  were  bounded  by  the  meander  line. 

1845.  February  27.  ‘‘An  Act  to  amend  an  Act  entitled,  ‘An 
Act  to  protect  Canal  Lands  against  trespasses,’  approved  March 
4,  1837 ; and  an  Act  to  amend  an  Act  entitled,  ‘An  Act  to  protect 
the  Canal  Lands  against  trespasses,’  approved  February  26,  1839” 
(Eev.  St.  1845,  p.  602  ; Canal  Comp.,  p.  90),  contains  the  following 
provision : 

“Said  lands  and  lots  shall  be  sold  in  conformity  with  the 
general  provisions  of  ‘An  Act  to  amend  the  several  laws  in 
relation  to  the  Illinois  and  Michigan  Canal,’  approved  Febru- 
ary 23, 1839.” 

(The  “23”  is  a misprint  for  “26.”  There  was  no  Act  of  that 
title  passed  February  23.  See  Canal  Comp.,  pp.  54-9.) 

This  was  another  re-enactment  of  the  meander  line. 

1847.  March  1.  An  Act  amendatory  of  last  cited  Act  of  Febru- 
ary 27,  1845  (L.  1847,  p.  24;  Canal  Comp.,  p.  107). 

This  Act  devolved  on  the  trustees  the  duty  of  such  re-sale,  and 
contained  the  following: 

“(State  Trustee)  Section  2.  Wherever  the  terms  ‘Acting 
Canal  Commissioner,’  ‘Canal  Commissioner,’  and  ‘Commis- 
sioner’ occur  in  the  Act  to  whidi  this  is  an  amendment,  there 
shall  be  substituted  in  the  place  and  stead  of  said  terms,  and 
there  is  hereby  so  substituted,  the  term  ‘State  Trustee,’  which 
last  term  shall  be  construed  to  mean  and  refer  to  the  trustee 
heretofore  appointed,  or  hereafter  to  be  appointed,  on  the 
part  of  this  State,  under  the  existing  laws  of  this  State,  as  one 
of  the  Board  of  Trustees  of  the  Illinois  and  Michigan  Canal.” 

This  enabled  the  State  Trustee  to  make  the  re-sale,  but  subjected 
his  re-sale  to  the  same  terms  and  conditions  as  were  contained  in  the 
Acts  of  1836  and  of  February  22,  1839,  as  amended  by  the  Act  of 
February  26,  1839 ; and  therefore  subject  to  the  meander  line  rule. 

These  re-enactments  of  the  meander  line  rule  show  that  it  was 
never  intended  to  repeal  it.  The  meander  line  rule  was  expressly 
re-enacted  as  to  lands  disposed  of  for  water-power. 

This  Unid  at  the  site  of  this  dam  was  disposed  of  for  water-power. 


The  ineaiuler  line  rule  was  expressly  re-enacted  as  to  all  re-sales 
of  lands  formerly  sold. 

The  law  would  be  inconsistent  if  it  restricted  the  trustees  by  the 
meander  line  rule  (a)  in  selling  water-])ower  lands  and  (b)  re-sell-, 
ing  lands  formerly  sold,  but  (c)  permitted  them  to  sell  the  remain- 
hig  river  front  lands  on  another  ride,  free  of  the  meander  line 
restriction.  There  is  no  ground  for  supposing  the  Legislature 
intended  to  authorize  such  an  inconsistency. 

[a)  We  maintain  that  the  meander  line  rule  of  Section  2, 
Clause  11,  forbids  a sale  beyond  the  meander  line. 

{b)  But  if  the  Act  of  1839  be  considered  as  furnishing  a rule 
of  construcUon  merely,  then  the  Canal  Commissioners,  or  their  suc- 
cessors, the  Canal  Trustees,  could  sell  lands  beyond  the  meander 
line  by  expressly  mentioning  them  in  terms  which  woidd  take  the 
description  out  of  the  meander  line  stahite. 

The  Boyer  deed,  under  which  the  defendant  claims,  does  not  ex- 
pressly mention  the  river  bed  or  lands  outside  the  meander  line. 

This  would  retain  the  title  to  the  bed  of  the  stream  in  the  Canal 
Trustees,  unless  it  was  expressly  mentioned  in  conveyance,  and 
would  in  all  conveyances  bounded  by  the  stream  leave  the  Canal 
Trustees  still  owning  the  ])ed  of  stream. 

Tf  the  Act  of  1839  is  a mere  rule  of  construction,  then  the  Trustees 
after  selling  the  land  on  each  side,  would  still  have  the  additional 
land  constituting  the  bed  of  the  stream,  which  they  could  sell  sepa- 
rately by  express  mention,  or  by  deeds  conveying  the  ‘ ‘ center  bed 
of  the  stream,”  or  by  deeds  covering  ‘^botli  sides,”  and  specifying 
to  include  ‘‘the  bed  of  the  stream  outside  the  meander  line.” 

This  plainly  shows  that  the  Trustees  would  benefit  by  this  con- 
struction and  the  estate  which  they  received  would  be  enhanced 
thereby.  They  would  receive  and  be  able  to  dispose  of  that  much 
more  l)y  separate  express  conveyance. 

But  we  believe  the  correct  interpretation  of  the  Act  of  1839  is 
that  it  reserved  the  bed  to  the  State  and  forbade  sales  of  the  bed; 
and  that  the  Canal  Trustees  took  it,  just  as  they  took  the  canal  and 
its  bed,  and  the  90-foot  strip. 

If  a court  of  equity  could  and  would  foreclose  the  mortgage  on 


the  canal  and  sell  it  ont  for  non-payment  of  tln^  bonds,  the  b(*d  of 
the  stream,  like  the  9()-foot  strip,  would  ^o  with  the  canal,  as  an  in- 
cident in  such  sale.  It  was  reserved,  as  tire  90-foot  strip  was  re- 
served, for  the  purpose  of  fully  protecting  the  State  in  its  right 
and  power  at  all  times  to  obtain  an  ample  supply  of  water  from 
the  river  for  the  purpose  of  feeding  the  canal. 

III. 

Who  O’wns  the  water  in  the  stream? 

We  answer,  '‘The  State  owns  the  water  in  the  stream/^ 

‘^The  comprehensive  statement  of  the  rights  of  a riparian 
owner  is  that  he  has  a right  to  have  the  stream  remain  in  place 
and  flow  as  nature  directs,  and  to  make  such  use  of  the  flowing 
water  as  he  can  make  without  materially  interfering  with  the 
equal  rights  of  the  owners  above  and  below  him  on  the  stream. 
# * There  is  no  property  right  in  any  particular  particle 

of  water,  or  in  all  of  them  together.  The  advantages  resulting 
from  a stream  of  water  depend  upon  the  fact  that  the  particles, 
uniting  in  one  mass,  maintain  a perpetual  course  throughout 
the  land,  and  these  particles  are  therefore  regarded  as  part  of 
the  common  mass,  and  subject  to  no  man’s  ownership.” 

(2  Farnham’s  ‘^Waters,”  Secs.  -l-()l-2,  citing  many  cases.) 

Since  the  particles  of  water  are  sul)ject  to  no  man’s  ownership, 
the  title  to  them  is  by  necessity  vested  in  the  State. 

‘‘No  one  has,  strictly  speaking,  a ])roperty  right  in  the  water 
itself,  but  a simple  use  of  it,  and  this  is  tlie  necessary  result 
of  the  perfect  equality  of  rights  among  all  the  proprietors  of 
that  which  is  common  to  all.” 

{Plumleigh  v.  Dawson,  (i  111.  (1  Gil.),  54-t,  550.) 

“The  law  has  long  been  settled  in  this  State  that  there  can 
be  no  property  merely  in  the  water  of  the  running  stream.  The 
owner  of  land  over  which  a stream  of  water  flows,  has,  as  in- 
cident to  his  ownership  of  the  land,  a property  right  in  the  flow 
of  the  water  at  that  place,  for  all  the  beneficial  uses  that  may 
result  from  it,  whether  in  motive  power  in  propelling  machin- 
ery, or  imparting  fertility  to  the  adjacent  soil,  etc.;  in  other 
words  he  has  a usufruct  in  the  water  while  it  ])asses.  But  all 
riparian  proprietors  have  precisely  the  same  right  in  regard 
to  it,  and  apart  of  the  right  for  consumption  for  supplying 


natural  wants,  neither  can,  to  tlie  injury  of  the  other,  obstruct 
tlie  water,  or  divert  or  arrest  its  flow.” 

(Scofield,  fJ.,  in  Druley  v.  Adam,  102  111.,  193.) 

The  State,  oivning  the  water,  owns  it  in  trust  for  the  whole  peo- 
ple for  the  paramoant  right  of  navigation ; and  subject  thereto,  the 
flow  thereof  is  held  in  trust  for  the  riparian  owners. 

^^Tlie  title  to  land  under  a navigable  river  is  not  the  same  as 
the  title  to  the  shore  land.  The  title  to  the  upland  is  absolute 
and  paramount,  while  the  title  to  the  lands  over  which  the 
navigable  water  flows  is  subordinate  to  the  public  right  of  navi- 
gation. In  a navigable  stream  the  public  right  is  paramount, 
and  the  owner  of  the  soil  under  the  bed  of  such  a stream  can 
only  use  and  enjoy  it  in  so  far  as  is  consistent  with  the  public 
right,  which  must  he  free  and  unobstructed.  * * * Under 

these  established  rules  an  owner  who  erects  a structure, 
whether  it  be  a tunnel  or  whatever  it  be,  in  the  soil  under  the 
navigable  water,  does  it  at  his  peril,  and  if  it  becomes  an  ob- 
struction to  the  paramount  right  of  navigation  he  may  be  com- 
pelled to  remove  it.” 

West  Chicago  St.  B.  R.  Co.  v.  People,  214  111.,  9,  20. 

Affirmed,  201  U.  S.,  506,  at  520,  where  the  United  States  Supreme 
Court  said  ‘‘it  was  adjudged  by  the  State  Court  in  harmony  with 
settled  doctrines,  as  will  presently  appear.”  And  the  United 
States  Supreme  Court  added: 

“In  addition  to  these  considerations  wo  may  suggest  the 
important  one  that  the  riadits  of  the  cojiiDany.  as  the  owner  of 
the  fee  of  land  on  either  side  of  the  river  or  in  its  bed,  were 
subject  to  the  paramount  riaht  of  navigation  over  the  waters 
of  the  river.  Weber  v.  Harbor  Corners.  18  Wall.,  57,  66;  Illi- 
nois Central  B.  B.  Co.  v.  Illinois.  146  U.  S..  387.  458;  Shively  v. 
Boirlby,  152  U.  S.,  1,  30;’  Gibson  v.  United  States,  166  U.  S., 
269,  276;  Scranton  v.  Wheeler.  179  U.  S..  163:  C..  B.  & Q.  By. 
Co.  V.  People,  212  111.,  103 ; Brazen  v.  Bressler.  64  111..  488;  Peo- 
ple V.  Vanderbilt,  28  N.  Y.,  396;  Setae  v.  McLuor.  154  X.  Y.,  61; 
State  V.  Parrott,  71  X.  Car..  311;  State  v.  Dibble,  4 Jones  (X. 
C.),  107 ; Dvedrich  v.  Northicestern.  etc..  By.  Co.,  42  lYis.,  248; 
Parmeter  v.  Attornen  General,  10  Price,  412;  Willianis  v.  Wil- 
cox, 8.  Ad.  & El.,  3t4:  Colchester  v.  Brooke,  7 Q.  B.,  339.  The 
principle  is  thus  declared  bv  a leading  text-writer : ‘ The  privi- 

lege of  navigation  upon  all  waters  wdiich  are  capable  of  such 
use  in  their  natural  condition  and  are  accessible  without  tres- 
passing upon  private  lands,  is  a common  and  paramount  right. 
^ * At  common  law  the  right  of  navigating  a public 

stream  is  paramount  to  the  right  of  passage  across  the  stream 


137 


by  ineniis  of  a bridge.’  Gould  on  Waters,  Sections  8f),  88.” 
(201  IT.  S.,  524.) 


IV. 

TtlE  SUKVEiYS  OF  THE  RIVER  SHOW  THAT  IT  WAS  MEANDERED. 

(1)  The  Government  Field  Notes  (Trans.,  ])j).  5717-5720,  5703- 
5782) : 

Summary  of  Field  Notes  of  the  Meanders. 

The  Field  notes  show  that  they  were  made  in  October,  1821. 

P.  of  Trans. 

5720  On  page  1 of  the  exhibit  Field  Notes,  volume  250,  page  259, 
the  surveyor  records  as  follows : 

Meandered  up  the  N bank  of  the  Illinois  Eiver  in  Sec.  No. 
24,  T.  No.  34  N.,  E.  No.  8 E.” 

Then  follow  the  directions  of  the  courses  and  distances 
thus:  ‘^S  76  E 13  00.” 

There  are  in  all  9 of  these  specifications  of  courses  and  dis- 
tances with  marginal  notes.  In  the  middle  of  the  list  of  courses 
and  distances,  the  surveyor  notes  Bluff  leaves  the  river.” 

(This  is  at  the  site  of  the  proposed  dam.) 

^‘Meandered  u])  the  N bank  of  the  Illinois  Eiver  in  Sec.  No. 
36,  T.  No.  34  N.,  E.  No.  8 E.” 

5763  On  page  44  of  the  exhibit  of  field  notes,  appears  the  follov;- 
ing  (Vol.  247,  page  158). 

‘‘Meanders  down  the  N.  side  of  La  Plain  through  Sec.  No.  1. 
T.  38  N.,  E.  12  E.,  from  the  head  of  navigation. 


S 34  E 

4.06 

S 48  E 

6.00 

S 24  E 

2.65 

S 43  E 

6.93 

S 151  W 

5.00 

S 301  W 

7.50. 

S 31  W 

13.00 

S 13  E 

3.50 

S 51  W 

13.00 

S 7 W 

7.00 

S 16  W 

8.76 

S 4L,  W 

4.21 

S 6 E 

7.23 

Oct.  17th,  1821. 

dno.  Wall 

to  the  corner  of  F Sec.  1 and  12.” 

(P.  207.) 

^Whmmenced  meandering  on  the  west  bank  of  an  island  in 


Illinois  liiver  at  tlie  corner  of  fraetl.  Sec.  11  and  14,  T.  34  N. 
of  R.  9 E.,  thence  down  the  river  with  the  meanders  thereof.” 

(Tliis  and  the  succeeding  ];)a^es  referring  to  ‘‘the 
island”  refer  to  Treat’s  Island. 

And  connnence  to  designate  the  river  as  the  “Illinois 
River”  from  the  month,  “ii])  what  we  call  the  Des  Plaines, 
and  uses  the  term  “Illinois  River”  seventeen  times  in 
these  field  notes,  and  the  term  “La  Plain”  three  times. 
It  was  suggested  contra  that  the  language  of  the  Act  of 
Cvongress,  1822,  about  connecting  the  waters  of  Lake  Mich- 
igan and  the  Illinois  River  showed  that  the  Des  Plaines 
was  disregarded,  but  here  tlie  Government  Surveyor,  in 
surveying  this  very  river,  under  direction  of  Congress  and 
rei)orting  it  to  the  Government,  describes  it  as  the  “Illi- 
nois River,”  only  the  year  before  that  Act  was  passed; 
])lainly  the  term  “Illinois  River,”  as  used  in  that  Act, 
included  as  part  of  it,  the  Des  Plaines  River.) 

5762  In  Volume  247,  page  156  (Field  Notes,  pages  42-3),  the  sur- 
veyor says, 

“Continued  through  Sec.  y2.  * * * Carried  up  across 

the  Portage  Creek  or  swamp  Oct.  16,  1821,  John  Walls.” 

Plainly  this  surveyor  thoroughly  understood  that  -he  was 
meandering  the  river. 

(2)  and  (3).  Turning  to  the  Government  township  maps  set  out 
in  items  (2)  and  (3)  in  brief  above,  we  find  that  these  maps,  mad^^ 
by  Surveyor  John  Walls  in  1821,  confirm  this. 

V 

Summary  of  Testimony  of  Cooley  on  Meander  Line. 

251  ^‘The  practice  of  the  Government  surveyors  with  reference 
marking  meander  lines  on  a river,  in  platting  a standa^’d 
plat  of  two  inches  to  the  mile  is  to  plat  the  river  bank  as  the 
meander  line.  It  is  the  high  water  bank  which  is  the  theoreti- 
cal meander  line.  The  secondary  lines  run  by  the  surveyor 
for  the  purj)ose  of  determining  that,  are  not  platted  but  the 
bank  itself  whic^Ii  is  the  object  of  the  survey,  is  platted.  The 
iv^^atment  upon  a map  of  this  size,  and  I refer  to  the  McFul- 
lough  Exhibit  I,  in  a stream  that  is  meandered,  would  differ 
2517  from  the  treatment  of  a stream  that  is  not  meandered,  in  the 
making  of  the  plat  on  this  scale.  In  this  way,  the  stream  that 
is  not  meandered  would  be  shown  in  the  conventional  way,  by 
a couple  of  parallel  lines  if  it  was  a large  stream,  or  by  a 
single  line  for  a smaller  stream.  The  meandered  stream  would 
show  the  courses — the  meanders  as  actually  run  by  the  sur- 
veyor and  actually  determined  by  the  surveyor.  Directing  my 
attention  now  to  Township  34,  Range  8,  on  McCullough  Ex- 


Ilibit  1,  this  (lifferonu'c  to  vvirioh  I have  i‘(h erred  is  indieatcuJ  in 
tlie  treatment  of  the  two  streams.  The  Dupage  Kiver  as  sliowri 
upon  that  map  is  not  a meandered  stream.  Tlie  Des  Plaines 
and  Jllinois  and  Kankakee  are.  A surveyor  familiar  with  the 
custom  and  practice  of  the  Government  surveyors  inspecting 
that  map  would  be  informed  as  to  what  stream  was  meandere(l 
and  what  stream  was  not  by  the  manner  in  which  the  streams 
are  delineated;  also  by  the  figures  of  acreage  given  for  the 
2518  fractional  sections  along  the  meandered  stream.  The  section 
in  and  through  which  the  Dupage  River  runs  would  show  full 
quarter  sections  unless  they  were  to  the  north  or  west  of 
the  township,  whereas  on  the  Des  Plaines  River  or  the  other 
meandered  streams  they  would  show  fractional  quarter  sec- 
tions where  in  contact  with  the  stream.  He  would  see  parallel 
lines  in -one  and  a lack  of  parallel  lines  in  the  other.  That 
would  be  evidence  at  once  that  one  stream  was  convention- 
ally platted  and  the  other  was  platted  by  the  notes  determined 
in  survey.” 

As  the  witness  Cooley  pointed  out,  the  Dupage,  which  was  not 
meandered^  was  represented  on  these  plats  by  iivo  conventional 
parallel  lines.  The  Des  Plaines,  Illinois  and  Kankakee,  which  icere 
meandered,  are  represented  not  by  conventional  parallel  lines,  but 
by  lines  which  in  some  places  swell  wide  apart  and  in  others  come 
near  together,  and  in  all  places  conform  accurately  to  the  specifi- 
cations in  the  field  notes,  and  delineate  the  same  with  all  the  minute- 
ness which  is  capable  of  being  shown  upon  a plat  of  that  size. 

The  same  thing  is  again  shown  in  the  difference  between  the 
treatment  of  the  Des  Plaines  River  above  ^diead  of  navigation,” 
and  below  that  point.  Above  the  ^Giead  of  navigation”  the  Des 
Plaines  River  itself  is  represented  by  two  conventional  parallel 
lines  less  than  a sixteenth  of  an  inch  apart.  In  surveying  that 
part  of  the  Des  Plaines  River,  just  as  in  surveying  the  Dupage 
River,  or  any  other  unmeandered  stream,  the  surveyor  took  no  ac- 
count of  the  river  except  to  determine  its  location  and  ran  his 
lines  straight  across  the  river,  without  any  distinction  of  treat- 
ment between  the  bank  on  one  side  and  the  bank  on  the  other  side. 

Below  ^diead  of  navigation”  the  surveyor  carefully  determined 
the  location  first  of  the  one  bank  and  then  of  the  other  bank,  by  a 
separate  series  of  courses,  distances  and  changes  of  direction  and 
points  of  measurement,  treating  each  bank  independently  and  mak- 
ing each  bank  the  boundary  of  the  fractional  section  which  he  laid 


^M) 


off,  (*{illing  encli  section  tlirough  wliieli  tlie  stream  ran  a fractional 
se(*tion  and  putting  the  area  upon  one  side  and  then  upon  the  other 
side  of  the  stream,  and  tlien  platting  the  whole  by  a plat  which 
conlorms  to  the  specifications  of  courses,  distances  of  direction  and 
])oiiits  of  measurement,  so  that  the  two  sides  of  the  stream  are 
represented  independently  of  eacli  other  as  inclosing  a body  of 
water  and  separating  two  bodies  of  land  by  lines  independently 
surveyed.  (Ahst.,  p.  845.) 

(4)  In  the  (yaiial  Surveys  of  1846-7,  which  drew  and  platted  the 
line,  Orr  Exhibit  (Trans.  Atlas,  p.  3924;  Ahst.,  p.  1918),  On- 
Exhibit  ‘‘4”  (Trans.  Atlas,  p.  3925;  Abst.,  p.  1919),  Orr  Exhibit 
“7”  (Trans.  Atlas,  p.  3927;  Abst.,.  p.  1920).  ‘These  three  Orr  ex- 
hibits are  copies  of  the  survey  by  the  canal  surveyor,  A.  J.  Mathew- 
son,  in  1846-47,  made  under  direction  of  the  Canal  Trustees. 

Mathewson  Survey  of  1846  and  1847. 

In  1839  the  Legislature  passed  the  statute  making  the  meander 
line  the  boundary  of  canal  lands  thereafter  sold.  In  1843,  they 
mortgaged  the  canal  property  to  the  Canal  Trustees,  and  ordered 
that  they  make  no  sales  of  canal  lands  until  after  they  should  com- 
plete the  canal. 

In  1846,  the  Canal  Trustees,  in  order  to  carry  out  the  ivill  of  the 
Legislature,  and  execute  the  powers  vested  in  them,  employed  A. 
J.  Mathewson  to  survey  the  canal  route  and  lands  and  the  meander 
lines  of  the  river  along  which  it  passed.  Mr.  Mathewson  pro- 
ceeded to  survey  the  entire  line  of  the  canal  and  the  entire  meander 
lines  of  the  Des  Plaines  and  Illinois  Kivers,  so  far  as  they  ran 
through  canal  lands;  and  he  took  the  United  States  Government 
field  notes  and  delineated  from  them  the  meander  line  of  the  Des 
Plaines  Biver  from  the  head  of  navigation  to  its  mouth. 

The  Canal  Trustees  in  doing  this  plainly  believed  and  intended 
to  treat  the  meander  line  statute  as  in  force  and  to  conform  there- 
to,— and  they  had  this  meander  line  survey  made  and  platted  in 
order  that  there  should  be  no  mistake  about  the  boundary  of  canal 
lands,  which  they  might  sell.  There  is  no  other  reasonable  object 
conceivable  for  which  they  would  incur  this  large  expense  in  plat- 
ting this  entire  meander  line. 


In  18()()  tlie  Canal  Triistoes  sold  this  section  25  at  the  iriouth  of 
the  river  to  (diaries  K.  Boyer. 

In  1908  the  surveyor,  Kudolpli,  went  to  the  site  of  the  darn  and 
surveyed  and  made  out  tlie  meander  line  afresh.  The  line  as  he 
surveyed  it  corresponds  exactly  with  the  line  as  surveyed  hy  canal 
surveyor,  Mathewson,  in  1846  and  as  surveyed  by  the  United  States 
Government  surveyor  in  1821. 

Purchasers  of  land  who  buy  the  same  by  a description  referring 
to  the  United  States  Government  survey  as  a muniment  of  title, 
are  charged  with  knowledge  of  what  is  therein  contained,  and  take 
subject  to  whatever  limitations  are  imposed  thereby. 

^‘The  maps,  plats  and  field  notes  of  governmental  surveys 
by  reference  become  a part  of  the  evidences  of  title  to  enable 
the  grantee  to  identify  his  boundary  lands.  ’ ^ 

Per  Scates,  J.,  in  Middleton  v.  Pritchard  (3  Scam.,  at 
521). 

The  Acts  of  the  Legislature  in  declaring  the  meander  to  be  the 
boundary,  and  of  the  state  surveyor,  under  direction  of  the  Canal 
Trustees  in  meandering  this  river  and  platting  the  line  thereof, 
made  the  meander  boundary  complete.  The  State  of  Illinois  drew 
the  boundary  line  twelve  years  before  Boyer  acquired  title. 

(5)  In  the  ma})  called  “Itudolph  Exhibit  1.”  (Abst.,  p.  1922.) 
This  last  is  a survey  made  at  the  time  of  the  trial  by  Surveyor  Emil 
Rudolph,  assisted  by  Surveyor  H.  H.  Bremer.  It  delineates  the 
meander  line  of  the  Des  Plaines  River  along  the  right  bank  at  the 
site  of  the  dam  and  shows  the  coffer-dam  and  the  progress  of  the^ 
work  as  it  existed  April  13,  including  the  location  of  the  power 
house  and  the  coffer-dam,  which  is  shown  to  be  upon  the  projecting 
triangle  of  land  outside  the  meander  line. 

Summary  of  RudolpJPs  Testimony. 

2206  ‘ ‘ * * * I have  been  engaged  in  the  business  of  surveyoi 

since  1871. 

2207  ^‘  The  principal  part  of  my  work  is  in  establishing  boundary 
lines,  the  lines  of  lands  and  many  larger  surveys  for  the  rail- 
roads and  parks  and  cemeteries.  Anything  in  the  surveying 
fine,  locating  the  meander  lines  of  lakes  and  rivers. 

“1  have  been  compelled  to  become  acquainted  with  and 
have  become  acquainted  with  the  plats,  maps  and  rules  of 


tli(‘  office  of  tlie  United  States  Government  in  charge  of  land 
surveys  in  Illinois,  made  by  and  under  the  direction  of  the 
surveyor  general. 

“Ihiese  (hxamients,  Field  Notes,  Exhibits  ],  and  3 (Abst., 

2312  PI).  1724,  1725) — for  instance,  take  tlie  one  marked  Exhibit  2, 

2213  1 see  in  the  first  page  of  the  one  marked  ^Exhibit  2’  there  ap- 
pears in  parenthesis.  Volume  250,  page  203,  and  then  the 
legend  ‘Meander  ])y  thcf  S.  })<.nk  of  Illinois  River,  in  Sec.  No. 
20,  T.  No.  34  N.,  R.  No.  8,  east.’  Below  that  there  is  a col- 
umn— tliere  are  columns  N.  E.  81  E.,  and  opposite  tliat  eight 
are  two  ciphers.  Below  that  N.  84  E.  and  to  the  rigid  of  that 
five  and  two  ciphers. 

2215  “N.  81  means  North  81  degrees  east,  that  is  the  course  as 
run;  eight  and  two  ciphers  means  8 chains.  North  81  east 
is  the  course  and  8 chains  is  the  distance,  which  this  course 
is  measured  to  the  next  course.  The  other  abbreviations  have 
the  same  meaning,  right  through  until  they  strike  the  corner 

2210  post,  the  section  corner. 

“Volume  250,  page  203,  means  the  volume  of  Government 
plat  books,  or  Government  surveys,  and  the  page  is  the  page 
number  of  that  volume. 

“Where  these  Government  notes.  Government  field  notes 
appear.  ‘Meander  by  the  S.  bank’  means  meander  by  the 
south  bank  of  the  Illinois  River;  in  Sec.,  that  is,  in  Section 
No.  20;  T.  is  township;  No.  34  N.  is  north;  R.  is  range;  No.  8 
E.  is  east;  and  then  the  courses  and  distances  follow.  That 
‘east’  means  east  of  the  third  principal  meridian. 

2217  “ ‘Meander  by  the  south  bank’  as  understood  by  surveyors 
— meander  is,  as  I understand  it,  as  the  running  of  a line  tak- 
ing its  course,  and  measuring  its  distances  from  some  given 
starting  point  and  continuing  on  to  the  ending  point.  That 
I would  call  surveying  a meander  line,  and  is  generally  ap- 

2218  plied  as  the  meander  line  of  the  river,  or  lake  or  body  of 
water,  and  the  margin  of  the  body. 

“The  meander  line  is  indicated  on  this  map  by  the  border 
lines  of  the  stream  itself.  The  map  is  drawn  on  a scale  of 
two  inches  to  the  mile  and  makes  it  too  small  to  admit  of  any 
specific  marking. 

2219  “The  map  indicates  the  meander  line,  the  way  that  the 
Government  survey  plats  indicate  the  meander  line.  Thev 
show  the  location  of  the  river  in  a geu^^al  way  by  showing 
the  direction  and  course  between  two  ineander  posts  in  the 
section. 

2220  “I  have  tested  the  map  by  actual  survey.  The  map  shown 
me  together  with  the  field  notes  that  have  been  shown  me  of 
the  meander  line  of  the  Des  Plaines  River  in  Section  25,  Town- 
ship 34,  Range  8,  ascertain  or  make  certain  the  location  of 
the  meander  line  of  the  Pes  Plaines  River  in  that  section. 


143 


“T  can  from  tlieso  field  notes  vvliieli  have  lieen  sliovvn  rntr 

2221  and  from  this  plat  \vlii(*h  lias  been  shown  find  a meander  line 
located  by  tliem. 

‘‘Looking  at  Section  25,  Townsliip  34,  Itange  8,  shown  on 
this  plat,  'I  observe  on  the  northeast  cpiarter,  the  plirase  ab> 
breviated  ‘IbO  Ac.,’  and  on  the  sonthwest  quarter  tlie  legend 
in  figures,  the  northeast  quarter  is  160  and  in  the  south- 
west is  146.24;  in  the  northwest  is  101.90;  in  the  southeast 
is  94.41.  The  figures  represent  the  area  of  the  different  frac- 
tional quarters,  in  acres.  The  area  which  is  covered  by  the  pale 
blue  which  is  labeled  the  name  of  the  river  would  be  outside 
of  the  meander  line.  On  several  other  sections  the  legend  640 
acres  means  that  the  section  contains  640  acres.  Sections  34 

2225  and  35  in  Township  34,  Kange  8,  each  contain  640  acres  by 

Government  survey,  being  a full  section. 

* * * * * * 

2225  “The  reason  why  that  the  surveys  made  the  difference  in 

2226  this  particular  section  twenty-five,  giving  160  acres  to  the 
northeast  quarter  of  the  section  and  the  lesser  amount  to  the 
other  three-quarters  of  the  Section  25 — because  the  section  is 
a fractional  section,  being  fractional  on  account  of  the  river 
running  through  it  and  the  fractional  parts,  the  areas  consti- 
tute, as  I have  said  before,  the  lines  within  the  section  line 
and  the  meander  line.  These  figures  indicate  in  the  different 
fractional  quarter  sections  of  Section  25,  Township  34,  Range 
8 East,  indicate  the  area  of  any  acres  of  land  within  the 
meander  line  of  those  several  quarters.  Section  25  is  a frac- 

2227  tional  section.  It  should  be  a full  section  according  to  Gov- 
ernment surveys.  The  balance  of  the  area  that  would  make 
up  the  640  acres  of  the  section,  not  mentioned  in  these  fig- 
ures, indicating  the  several  amounts  in  the  several  fractional 
quarters  is  to  be  found  in  the  river  and  between  the  edges 
of  the  river  and  the  meander  line. 

“There  is  a little  patch  that  has  not  been  mentioned  (in- 
dicating on  plat),  twenty-six  acres,  twenty  acres  and  a frac- 
tion, there  on  the  south,  and  the  figures  that  have  not  been 

mentioned  by  anyone  appearing  in  the  southeast  corner. 
***** 

2230  “From  the  field  notes,  and  the  McCullough  Exhibit  1,  the 
streams  which  are  shown  to  be  present  in  Section  25,  Town- 
ship 34,  Range  8,  have  been  meandered  by  the  surveys  of  pub- 
lic lands  of  the  United  States. 

“There  is  not  anything  called  for  by  the  expression  ‘mean- 
dered by  the  surveys  of  the  public  lands  of  the  United  States,’ 
which  is  absent  from  the  field  notes  and  this  plat.  (McCul- 
lough Exhibit  1,  Abst.,  ]).  1914.) 

* * ' * * * 

2243  “It  is  possible  to  retrace  the  original  meander  line  in  Sec- 


2244  tion  27),  Townisliip  34,  Kange  8,  from  tliese  notes.  T have 
retraced  tliem  by  survey.  T have  a plat  of  my  surveys  on  a 
larger  scale.  Jt  is  this  which  is  now  produced  (exhibiting 
plat  to  witness),  bearing  also  the  legend  ^Plat  of  survey  of 
ihe  north  fraction  of  Section  25,  abbreviated.  Township  34 
N.,  R.  8 E.  of  the  Third  Principal  Meridian,  surveyed  April 
13th  to  23rd,  1908,  by  Emil  Kudolph  and  H.  H.  Bremer,  Sur- 
veyors,’ whicli  said  map  was  received  in  evidence  and  marked 
‘Rudolph  Exhibit  1,  Atlas,  p.  3941 .’  (Abst.,  p.  1922.)  * * * 

2248  ‘‘These  lines  on  this,  which  I have  described  as  meander 
lines,  represent  the  position  of  the  retraced  meander  line  of 
tlie  Government.  Taking  the  original  Government  field  notes 
as  a basis,  and  from  the  test  and  actual  survey  that  I have 
made,  I would  say  that  these  meander  lines  had  actually  been 
run.  * * *’? 

(6)  The  testimony  of  the  engineers,  Rudolph,  Bremer  and 
Cooley,  shows  that  the  river  was  meandered  according  to  the  prac- 
tice of  engineers. 


V. 

THE  CASES  ON  THE  MEANDERING  OF  RIVERS  EXAMINED. 

1848  Canal  Trustees  v.  Havens,  5 Gilm.,  548. 

Des  Plaines  River. 

•‘Appeal  from  a decision  of  Circuit  Court  of  Will  County 
for  an  agreed  statement  of  fact.  The  plaintiff  in  court  below 
claiming  damages  for  injury  to  their  mill  by  reason  of  diver- 
«iion  of  water  from  the  Des  Plaines  River. 

It  is  admitted  that  the  Illinois  and  Michigan  Canal  was  com- 
menced in  1836,  and  that  portions  of  the  canal  through  said 
sections  were  put  under  contract  in  1838,  and  the  guard  Iock 
on  section  nine  near  the  dam  across  said  river,  first  above 
said  section  sixteen,  was  commenced  in  1840,  by  digging  the 
pit  in  the  spring  and  a part  of  the  stone  laid  in  the  fall.  The 
stone  for  the  same  was  quarried  and  dressed  during  the  spring 
and  summer  of  the  same  year.  The  stone  for  the  said  dam 
on  section  nine  (which  is  a cement  and  cut  stone  dam)  was 
commenced  being  quarried  and  cut  the  same  season,  and  the 
dam  was  commenced  the  following  season,  in  the  spring,  and 
finished  in  the  fall  of  1841.  The  contracts  for  building  said 
dam  and  locks  were  made  in  1839,  that  said  lock  and  dam  were 
to  be  built. 

It  is  agreed  that  in  the  spring  of  1839,  the  plaintiffs  com- 
menced building  a mill  on  said  lot  one  in  block  fifty-seven,  on 


section  sixteen,  nnd  also  a dam  across  the  Des  Plaines  Kivcn*, 
connecting  said  lot  one  in  block  fifty-seven  on  the  east  bank 
of  said  river  with  the  division  line  between  lots  one  and  four 
in  block  fifty-six,  on  the  west  bank  of  said  river,  and  com- 
pleted said  dam  and  sawmill  so  as  to  use  the  same  in  the  fol- 
lowing October  or  November.  Soon  thereafter  the  Commis- 
sioners of  the  Illinois  and  Michigan  Canal,  in  constructing  said 
canal,  removed  the  west  end  of  said  dam  so  that  it  became 
connected  with  the  east  bank  of  the  canal,  which  bank  en- 
croached upon  the  natural  channel  of  the  river  about  ten  feet. 

* * * On  the  20th  of  April,  1848,  the  defendants  diverted 

or  caused  to  be  diverted  into  the  canal  for  the  use  of  said  canal 
from  the  natural  channel  of  the  river,  the  whole  or  principal 
part  of  the  waters  of  said  river,  by  turning  the  same  from  the 
basin  made  in  said  river  by  means  of  the  dam  on  section  nine, 
being  a canal  section,  and  about  half  a mile  above  the  dam  of 
said  plaintiffs,  so  that  the  plaintiffs  are  wholly  deprived  of 
the  use  of  the  water  at  their  said  mills,  and  have  not  since 
been  able  to  run  their  machinery.  From  the  time  of  putting 
this  portion  of  the  canal  under  contract  in  1838,  and  up  to 
the  year  1843  there  had  been  no  change  in  the  original  plan  of 
supplying  the  canal  with  water  from  Lake  Michigan  by  the 
deep  cut  as  originally  contemplated,  and  all  contracts  let 
previous  to  1843,  and  all  the  arrangements  of  said  canal  were 
made  notoriously  upon  the  plan  aforesaid,  and  with  a view 
to  supply  the  canal  from  Lake  Michigan. 

It  is  also  admitted  that  the  Des  Plaines  River  is  not  navi- 
gable  in  fact,  although  a portion  of  it  is  declared  to  he  so  by 
Act  of  the  Legislature. 

The  work  upon  tbe  canal  commenced  being  suspended  in 
1841,  and  was  entirely  suspended  from  1842  to  1845. 

The  (breuit  Lourt  decided  the  ])laintiffs  were  entitled  to 
damages  and  Su})erior  Court  affirmed  the  decision. 

^‘Tliat  rivers  not  navigable  belong  to  tlie  owners  of  the  ad- 
joining land  and  that  when  the  opposite  banks  belong  to  dif- 
ferent individuals  each  bolds  to  the  thread  or  middle  of  the 
stream.  ’ ’ 

^‘The  general  rule,  that  rivers  not  navigable  belong  to  the 
owners  of  the  adjoining  land,  and  that,  when  the  opposite 
banks  belong  to  different  individuals,  each  holds  to  the  thread 
or  middle  of  the  stream,  is  not  disputed,  but  then  it  is  insisted 
that  the  appellees  have  no  such  right  in  this  case  for  two  rea- 
sons : 

'Mt  is  first  contended  that  by  an  Act  of  Congress,  approved 
March  30,  1822,  the  State  of  Illinois  was  anthorized  to  survey 
and  mark  through  the  public  lands  of  the  United  States  the 
route  of  the  canal  connecting  the  Illinois  Liver  with  the  south- 
ern bend  of  Lake  Alichigan,  and  ninety  feet  on  each  side  of 


said  canal  was  forever  reserved  from  any  sale  to  be  made  l)y 
the  United  States,  and  vested  in  said  State  for  a canal ; wliere- 
fore  it  is  said  that  the  appellees  are  deprived  of  any  right 
which  they  might  otherwise  have  to  any  water  or  land  within 
ninety  feet  of  said  canal.  It  is  to  be  observed  that  a certain 
time  was  provided  by  the  Act  of  Congress  within  which  the 
State  was  to  commence  and  complete  said  canal,  or,  upon 
failure  to  do  so,  it  was  declared  that  the  reservation  and 
grant  made  by  said  Act  should  l^e  void  and  of  no  etfect.  With- 
out stopping  to  inquire  whether  the  right  of  way  secured  by 
the  Act  of  Congress  was  forfeited,  so  as  to  revest  ipso  facto 
in  the  Government,  upon  failure  of  the  State  to  commence 
and  complete  the  canal  within  the  time  limited  by  the  Act. 
or  whether,  as  is  contended,  the  conditions  of  the  Act  of  1822 
were  waived,  and  the  time  for  commencing  and  completing  the 
canal  extended  by  an  Act  of  Congress  passed  March  2.  1827, 
it  will  be  sufficient  to  show  that  nerther  of  said  Acts  of  Con- 
gress can  have  any  bearing  upon  the  rights  of  the  appellees, 
admitting  even  that  they  are  of  the  character,  and  contain  all 
that  is  contended  for  by  the  appellants. 

‘^The  lots  of  the  appellees  are  situate  on  section  sixteen, 
which  was  granted  to  the  State  for  the  use  of  schools,  prior 
to  the  passage  of  the  Act  of  1822.  li  was  not,  therefore,  pub- 
lic land  at  the  passage  of  the  Act,  and,  consequently,  no  part 
of  it  could  at  that  time  have  been  reserved  from  sale  by  the 
United  States. 

***** 

^Mt  is  next  insisted  that  the  United  States,  in  granting  the 
school  section  to  the  State,  did  not  include  in  the  grant  the 
bed  of  the  stream  running  through  it,  but  that  said  stream,  the 
Des  Plaines  River,  was  meandered  through  said  section,  and  a 
plat  thereof  returned  to  the  Surveyor  General’s  office,  show- 
ing that  the  river  was  not  included  in  the  survey;  and  while  the 
appellants  admit  that  a grant  of  land  bounded  by  a stream 
not  navigable,  passes  the  property  to  the  thread  of  the  stream, 
yet  it  is  insisted  that  the  owner  has  the  right  to  restrict  his 
grant  either  to  the  edge  of  the  water,  or  to  high  or  low  water 
mark.  Admit  that  the  owner  may  so  restrict  his  grant,  of 
which  there  can  be  no  question,  when  the  intention  is  clear 
and  manifest,  and  'still  the  admission  cannot  avail  the  appel- 
lants, because  there  is  nothing  in  the  record  to  show  that  the 
United  States  intended  to  limit  their  grant  so  as  to  exclude  the 
river.  Neither  the  plats  tiled  in  the  Land  or  Surveyor  General’s 
office,  show  any  lines  marking  the  courses  and  distances  along 
the  margin  of  the  river,  as  a boundary  of  the  adjoining  land. 

‘^The  agreed  case  states  as  follows:  At  is  admitted  that 
said  Des  Plaines  River  is  meandered  through  the  entire  length 
of  said  sections,  as  appears  by  the  minutes  of  said  survey. 


147 


in  said  surveyor’s  office,  a copy  of  wliicli  iniruites  is  also  at- 
tached, marked  2,  and  delineated  on  said  maps.’  We  do  not 
understand  this  language  to  imply  that  the  meandered  line 
was  marked  upon  the  maps  in  the  Land  and  Surveyor’s  offices, 
but  that  it  would  appear  by  the  minutes,  not  maps,  that  said 
river  was  meandered,  a copy  of  which  minutes  is  also  attached 
and  delineated  on  said  maps,  not  as  they  appear  in  said  of- 
fices, but  as  they  are  made  exhibits,  which,  however,  is  an 
error  in  point  of  fact,  as  there  are  no  distinctions  of  said 
meandered  lines  upon  the  maps.  As  there  was,  therefore,  no 
marked  lines  upon  the  plat  by  which  the  grant  was  made, 
defining  and  limiting  the  land  granted  to  the  margin  of  the 
stream,  the  whole  argument  founded  upon  such  a supposed 
state  of  facts  fails. 

^‘That  a meander  line,  which  is  run  for  the  purpose  of 
ascertaining  the  quantity  of  land  in  the  fraction,  is  not  a 
boundary,  has  been  settled  by  a former  decision  of  this  Court, 
in  the  case  of  Middleton  v.  Pritchard,  3 Scam.,  510. 

^ ^ In  that  case  the  Court  say : ^ It  appears  the  Surveyor  of 

the  Grovernment  traced  the  courses  and  distances  along  the 
margin  of  the  slough,  next  the  main  land,  in  order  to  estimate 
the  quantity  of  land  in  the  fraction;  and  which  estimate  did  not 
include  the  locus  in  quo.  But  the  plats  in  the  Land  Office, 
and  'Surveyor  General’s  Office,  have  no  line  marking  their 
courses  and  distances  as  a boundary.’  Neither  have  the  plats 
referred  to  in  this  case.” 

1850  Canal  Trustees  v.  Havens,  11  111.,  554. 


Bes  Plaines  River. 

Appeal  from  order  of  Circuit  Court  of  Will  County,  approv- 
ing the  assessment  of  damages  for  diverting  the  water  from 
Haven’s  dam  into  canal. 

Assessment  eri-oneous  because  plaintiff,  as  riparian  owner, 
only  took  to  the  middle  of  its  'street  and  did  not  have  any 
riparian  rights  on  the  west  side  of  the  river  and  were  entitled 
to  damages  for  the  use  of  one  dial  f of  the  flow  of  water  only. 
Judgment  reversed. 

Definition : 

Public  right  in  highway  or  river  to  middle  thereof. 

The  Court  say: 

‘^But  independent  of  the  statute,  there  is  a decisive  objection 
to  the  claim  of  the  appellees  to  riparian  rights  on  the  west 
bank  of  the  river.  By  the  common  law,  a grant  of  land  bor- 
dering on  a highway  or  river,  carried  the  exclusive  right  and 
title  in  the  highway  or  river  to  the  center  thereof,  subject  to 


U8 


t]ie  right  of  passage  in  the  public,  unless  the  terms  of  the 
grant  clearly  indicated  an  intention  on  the  part  of  the  grantor 
to  confine  the  grantee  to  the  edge  or  margin.  In  such  case, 
the  highway  or  river  is  regarded  as  the  boundary  or  monu- 
ment, as  part  and  parcel  of  the  grant.  This  is  stating  the 
])rincipal  as  broadly  as  it  is  laid  down  in  any  of  the  elemen- 
tary books,  or  established  by  any  of  the  adjudged  cases.  Con- 
ceding, then,  for  the  purpose  of  the  argument,  that  the  doc- 
trine of  the  common  law  is  strictly  applicable  to  this  case, 
and  applying  it  in  its  full  extent,  the  appellees  would  fail  utter- 
ly to  make  good  their  claim.  Their  grant  would  only  carry 
them  to  the  middle  of  the  boundary.  They  would  have  no  title 
whatever  to  the  east  half  of  the  street,  or  the  west  half  of 
the  bed  of  the  river. 

Definition: 

‘‘By  the  common  law  a grant  of  land  bordering  on  a high- 
way or  river  carried  the  exclusive  right  and  title  thereof  sub- 
ject to  the  right  of  passage  in  the  public  unless  the  terms  of 
the  grant  clearly  indicate  an  intention  on  the  part  of  the 
grantor  to  confine  the  grantee  to  the  edge  of  the  margin.’^ 

The  admission  in  this  case  by  the  Canal  Commissioners  that  the 
river  which  the  Legislature  had  declared  navigable,  was  not  navi- 
gable, was  an  act  outside  their  province  and  authority  and  not 
binding  on  the  State  in  any  other  matter,  even  if  it  was  in  that 
case  itself. 

The  Canal  Commissioners  had  no  power  to  make  such  a stipu- 
lation. 

111.  & Mich.  Canal  v.  Calhoun,  1 Scam.,  521. 

Diedrich  v.  Rose,  228  111.,  610. 

State  of  Illinois  v.  Delofield,  8 Paige’s  Chy.,  528. 

Ohio,  ex  rel.  Atty.  Gen.  v.  Cin.  Central  R.  Co.,  37  Ohio  St., 
157. 

Snyder  v.  City  of  Mt.  PidasUi,  176  111.,  397. 

City  of  Morrison  v.  Hinhson,  87  111.,  587. 

Hibbard  v.  City  of  Chicago,  173  111.,  91. 

It  related  to  the  river  in  Section  16,  which  was  not  a canal  sec- 
tion. 

The  line  on  the  plats  shown  as  the  river  border  is  in  fact  the 
meander  line  itself  and  not  the  actual  river  edge  or  border  of 
the  stream.  This  is  well  illustrated  by  the  decision  of  the  United 
States  Supreme  Court  in  Railroad  Company  v.  Schurmeir,  7 all., 
272,  286,  where  the  Court,  Mr.  Justice  Clifford,  says: 


149 


‘^Express  doc'/isioii  of  the  Supreme  Oourt  of  the  Slate’’  (10 
82)  ^‘was,  that  the  river,  in  tiiis  ease,  and  not  the  mean- 
der line,  is  the  west  boundary  of  the  lot,  and  in  that  eonclii- 
sion  of  the  State  court  we  entirely  concur. 

Meander  lines  are  run  in  surveying  fractional  portions  of 
the  public  lands  bordering  upon  navigable  rivers,  not  as  bound- 
aries of  the  tract,  but  for  the  purpose  of  defining  the  sinu- 
osities of  the  banks  of  the  stream,  and  as  the  means  of  ascer- 
taining the  quantity  of  the  land  in  the  fraction  subject  to  sale, 
and  which  is  to  be  paid  for  by  the  purchaser. 

‘Mn  preparing  the  official  plat  from  the  field  notes,  the 
meander  line  is  represented  as  the  border  line  of  the  stream, 
and  shows,  to  a demonstration,  that  the  water  course,  and  not 
the  meander  line,  as  actually  run  on  the  land,  is  the  boundar}^  ’ ’ 

These  passages  have  been  quoted  with  approval  in  Jejfris  v. 
East  Omaha  Land  Co.,  134  U.  S.,  178  at  196,  and  Hardin  v.  Jordan, 
140  U.  S.,  371,  at  381,  which  later  decision  was  affirmed  but  with- 
out noticing  the  passage  in  question  in  Kean  v.  Calumet  Canal  Co., 
190  U.  S.,  459,  cited  by  Justice  Holmes  in  1902. 

June  17,  1896. 

So  the  Supreme  Court  of  Illinois  in  Fidler  v.  Shedd,  161  111.,  462, 
at  464,  sets  out  in  the  statement  of  fact,  the  following : 

‘^Wolf  Lake  as  thus  meandered,  comprised  a body  of  water 
covering  several  thousand  acres  of  land,  and  when  originally 
surveyed  was  believed  to  be  a navigable  lake,  and  was  so  des- 
ignated by  the  field  notes  of  the  surveyor  in  its  original  sur- 
vey. The  plat  of  the  original  survey  may  be  given  as  follows, 
so  far  as  the  lake  is  within  the  State  of  Illinois : * * * 

June  19,  1902. 

While  nothing  is  said  in  this  opinion  in  reference  to  the  designa- 
tion of  meander  lines,  still  the  diagram  seems  to  agree  with  the 
rule  laid  down  in  7 Wall.,  272,  that  the  meander  lines  are  shown 
as  the  border  lines  of  the  water,  and  finally  in  Albany  Bridge  Co. 
V.  The  People,  197  111.,  199,  at  204,  the  Supreme  Court  in  a decision 
per  curiam  quoted  with  approval  a long  passage  from  Jefferis  v. 
East  Omaha  Land  Co.,  134  IT.  S.,  178,  in  which  is  a passage  quot- 
ing the  passage  in  question  from  Railroad  Co.  v.  Schurmeir,  7 Wall, 
272,  namely  that  ^Hn  preparing  the  official  plat  from  the  field 

notes,  THE  MEANDER  LINE  IS  REPRESENTED  BY  THE  BORDER  LINE  OF  THE 
STREAM,”  etc. 

Albany  Bridge  Co.  v.  The  People,  197  111.,  199,  205. 


150 


VI. 

( I rants  in  derogation  of  })ul)rK*  rights  are  strictly  construed  and 
not  extended  by  iin})lication. 

CJiades  River  Bridge  v.  Warren  Bridge,  11  Peters,  426- 
50. 

Snell  V.  City  of  Chicago,  183  111.,  439. 

So  grants  of  lands  under  or  around  a navigable  stream  imply 
no  intent  to  discontinue  the  public  right  therein. 

Shively  v.  Bolby,  152  U.  S.,  10. 

Conn.,  Sc.,  Lumber  Co.  v.  Olcott,  65  N.  H.,  380;  13  L.  R. 
A.,  832. 

Thompson  v.  River  Co.,  58  N.  H.,  1. 

‘AJnly  that  which  is  granted  in  clear  and  explicit  terms 
passes  by  a grant  of  property,  franchises  or  privileges,  in 
which  the  government  or  the  public  has  an  interest.” 

All  doubts  are  resolved  in  favor  of  the  state. 

Coosaiv  Mining  Co.  v.  South  Carolina,  144  U.  S.,  550,  561. 
Hannibal,  Sc.,  R.  Co.  v.  Missouri  River  Packet  Co.,  125 
U.  S.,  260-271. 

Stein  V.  Bienville  Winter  Supply  Co.,  141  U.  S.,  67-80. 

Grants  of  that  character  are  to  be  construed  strictly  in 
favor  of  the  public,  and  whatever  is  not  unequivocally  granted 
is  withheld.  Nothing  passes  by  mere  implication.”  Ibid. 

Holyoke  Co.  v.  Lyman,  15  Wah,  500. 

So  even  a charter  right  to  construct  a dam  across  the  stream 
does  not  exempt  the  grantee  from  the  obligation  of  a subsequent 
statute  requiring  the  construction  of  a fishway. 

Parker  v.  People,  111  111.,  581. 

Holyoke  Co.  v.  Lyman,  15  Wah,  512. 

Affirming  104  Mass.,  449. 

Clement  v.  Metrop.  West  Side  R.  R.  Co.,  123  Fed., 
Rep.,  271. 

So  a grantee  of  public  land,  on  which  is  a dam  causing  the 
overflow  of  adjoining  land,  has  no  right  to  maintain  the  dam  after 
such  adjoining  lands  are  taken  by  other  settlers. 

Wilcoxon  V.  McGhee,  12  111.,  386. 


151 


The  State  was  reasonably  more  pai'ticular  to  ^^nard  its  tith* 
to  the  land  grant  conveyed  to  it  for  public  uses  and  its  own  grants 
of  portions  thereof,  than  it  was  in  construing  grants  of  the  g(ui- 
eral  government  to  individuals  for  private  uses  from  tin*  gemn-al 
body  of  the  public  domain.  Hence  the  limitations  in  the  Act  of 
1839. 

So  the  grant  by  the  State  of  the  right  to  maintain  a dam  in  a 
navigable  stream,  while  valid  so  long  as  Congress  has  not  acted, 
is  subject  to  the  right  of  Congress  to  interfere  in  the  matter  when- 
ever it  may  deem  necessary  so  to  do. 

Pound  V.  Turch,  95  U.  S.,  459. 

VI 1. 

THE  PROCEEDING  BY  INFORMATION  IS  IN  SOME  RESPECTS  ANALOGOUS  TO 
EJECTMENT  AND  IN  SOME  RESPECTS  TO  QUO  WARRANTO. 

The  trial  court  treated  this  information  in  ecpiity  as  a pro- 
ceeding to  try  the  title  to  land.  In  many  respects  it  is  a trial 
to  the  title  to  land.  (1)  The  State  asserts  ownership  to  the  bed 
of  the  stream.  The  defendant  denies  the  title  of  the  State.  This 
is  a trial  of  the  title  to  the  land.  (1^)  The  State  asserts  the  ex- 
istence of  a ])ublic  easement  throughout  the  reach  of  the  Des 
Plaines  River  from  Dam  No.  1 to  its  junction  with  the  Kankakee. 
The  defendant  denies  the  existence  of  this  easement.  The  trial 
of  this  issue  is  the  trial  of  the  title  to  the  real  estate  attribute 
involved  in  the  easement.  (3)  The  defendant  asserts  the  right 
to  overflow  in  iierpetuity  Ihe  90-foot  strip,  the  berm  bank  and 
tow-path  of  the  canal.  The  Stat(‘  denies  this  right  to  the  de- 
fendant and  asserts  the  invalidity  of  tlie  contracts  which  pur])ort 
to  grant  such  right.  The  trial  of  this  issue  involves  the  trial  of 
rights  in  real  estate. 

While  none  of  these  are  ordinarily  triable  in  ejectment  and 
are  jiroperly  cognizable  in  ecpiity  where  a more  liberal  rule  as 
to  the  establishment  of  ecpiitable  rights  justly  ])revails,  — the  triaf 
court  saw  fit  to  a])ply  to  the  case  of  the  State  the  strict  rule  of 
an  ejectment  proceeding  tliat  the  State  must  recover,  if  at  all 


152 


on  the  sti-(Migtli  of  its  own  title  and  not  upon  the  weakness  of  its 
advcu’sjiries. 

If  tlie  lailes  of  ej(‘etnient  are  to  he  applied  to  this  ease  there 
is  a rule  of  ejeetinent  ])roeeedings  that  slionld  he  ai)plied  now, 
viz:  the  gi*anting  of  a new  trial. 

From  the  earliest  times  in  this  country  it  was  recognized  that 
tlie  trial  of  the  title  of  real  estate  was  a matter  to  which  a more 
liberal  rule  sliould  he  a|)])lied  than  to  otlier  proceedings.  It  might 
involve  a homestead.  It  might  involve  a title  depending  upon  a 
lost  deed.  It  might  involve  a title  depending  upon  the  absence 
of  an  attesting  witness  or  magistrate  to  prove  the  execution  of  a' 
deed.  It  affected  the  rights  of  heirship,  dower,  inheritance  and 
devise.  It  dealt  with  the  res  which  sprang  primarily  from  the 
grant  by  the  State  or  Cxovernment,  viz. : the  title  to  real  estate. 
Thc;ge  were  some  of  the  reasons  which  led  to  the  gradual  adoption 
of  this  rule.  Originally  it  was  said  that  ejectment  was  only  a 
possessory  action  to  test  the  right  of  possession  between  the 
lessee  and  the  disseisor,  and  therefore  was  no  bar,  no  estoppel, 
and  a second  ejectment  might  be  instituted.  But  later  and  more 
important,  it  was  held  that  a change  of  possession  .would  follow 
the  first  judgment,  and  later  that  in  reality  the  action  was  a trial 
of  title  and  that  the  judgment  would  settle  the  status  of  the  title 
and  bind  the  parties  for  all  time  to  come.  • Then  the  rule  as  to 
new  trials  was  reversed  and  they  were  granted  more  liberally  in 
ejectment  than  in  other  proceedings.  Mills  v.  Caldivell,  2 Wall., 
35-41;  Equator  Co,  v.  Hall,  106  U.  S.,  87 ; Sedwick  & Wait  on  Tria! 
of  Title  to  Land,  2 ed.,  secs.  576-579. 

Most  of  these  special  reasons  and  this  general  comprehensive 
reason  which  underlay  the  rest,  apply  with  stronger  reason  to 
this  proceeding  to  detennine  the  ownership  of  the  bed  of  this 
river,  the  existence  of  this  public  easement  for  future  generations, 
than  even  to  the  proceedings  in  ejectment.  Since  the  State  has 
been  compelled  to  endure  the  burden  of  the  ejectment  rule,  it 
ought  now  to  have  also  the  benefit. 

The  ejectment  rule  in  Illinois  was  adopted  by  statute  of  March 
2,  1839.  L.  1839,  pp.  220-225. 

The  statute  was  adopted  from  New  York.  In  New  York  this 


provision  for  n so(‘oti(1  in  oj(‘(‘lniOTit  vvns  fii-sl  (‘naclod  in 

3828.  See  Act  of  Doc.  10,  1828;  look  (‘Hoct  Jan.  1,  1820.  2 N.  V. 
Dev.  Stat.  ( Duer,  Butler  S:  Suencer),  d.  225  ((2i.  V,  Bilk*  L sac. 
28.) 

Tliere  was  a time  wlien  new  trials  were  not  usual  in  ejectment 
(2  Tidd’s  Practice,  1240);  but  the  very  sense  of  the  injustice 
and  great  hardship  of  sucli  a rule  led  to  the  change  in  the  oppo- 
site direction. 

It  was  long  ago  settled  that  a State  cannot  maintain  an  action 
of  trespass  to  try  title  to  land  or  an  action  of  ejectment  because  a 
State  cannot  be  disseized. 

The  remedy  against  a trespasser  in  such  case  in  favor  of  the 
State  is  by  information  for  intrusion. 

State  V.  Arledge,  1 Bailey,  551. 

Jackson  v.  Winsloiv,  2 Johnson,  80. 

2 Washburn,  Real  Property,  539. 

The  proceeding  here  was  by  information  for  this  very  reason 
the  remedy  being  the  only  remedy  of  the  State  for  such  titles 
the  incident  of  the  opportunity  for  two  trials  ought  to  apply  to 
it  under  the  maxim  that  equity  follows  the  law  as  to  the  statute 
of  limitations  although  equitable  proceedings  are  not  named  in 
the  statute.  Tlie  same  rule  should  apply  here. 

The  attitude  of  this  court  as  to  the  liberal  allowance  of  the 
right  of  new  trial  and  the  shaping  its  proceedings  so  as  to  pre- 
serve this  right  for  the  unsuccessful  party,  is  illustrated  by  Lowe 
V.  Foulke,  103  Illinois,  58,  and  Strean  v.  Lloyd,  128  111.,  493,  where 
the  court  refused  to  receive  a remittitur  as'  to  the  surplus  of  an 
excessive  judgment  and  reversed  the  judgment  and  remanded  the 
case  in  order  to  get  the  case  back  into  the  trial  court  in  time  to 
permit  the  statutory  right  of  new  trial  to  be  availed  of. 

PuRPRESTURE : — Burden  of  proof  is  on  the  defendant. 

Rutz  and  Others  v.  City  of  St.  Louis,  C.  C.,  7 Fed.,  438.  An  ac- 
tion for  damages  which  resulted  from  the  erection  of  a dyke  in 
the  Mississippi  River.  By  the  Court  per  Treat,  D.  J.  : 

‘^Second.  Defendant  contends  that  the  dyke  built  by  it  was 
under  authority  of  Missouri  statutes,  and  consequently  was 


154 


not  iiiiliurful,  (les])ite  tlie  avei*meiits  in  ])laintift’s  petition  to 
the  eontrary. 

Can  sueli  a ))roposition  he  raised  l)y  deninrrer  to  the  peti- 
tion? ^ ^ 

* * * * * 

The  (piestion  intended  to  he  raised  by  deninrrer  cannot  be 
so  i-aised.  The  (*onrt  must  he  informed  liy  answer  on  trial 
whether  the  dyke  interfered  witli  the  navigability  of  the  river, 
and  transceiuled  the  ])ower  of  the  state  in  the  premises.” 

***** 

Penns iflvama  Ry.  Co.  v.  Balto.  d-  N.  Y.  Ry.  Co.  et  ol.,  (C.  C.), 
37  Fed.,  129. 

An  action  for  damages  on  account  of  loss  suffered  by  plaintiff 
because  of  the  erection  of  a bridge  across  the  Arthur  Hill.  De- 
murrer. 

Per  AVallace,  J.  : 

“The  Act  of  Congress  prescribes  various  conditions  and 
details  of  location  and  construction  which  are  to  be  observed 
by  the  defendants  in  exercising  the  authority  granted  (Act 
June  l(i,  1886),  and  requires  the  approval  of  the  secretary 
of  war  to  the  plan  and  location  of  the  structure,  precedent 
to  its  erection. 

It  is  now  insisted  in  behalf  of  the  defendants  that  the 
court  must  presume  that  these  conditions  have  been  complied 
with,  and  consequently  that  the  bridge  is  a lawful  structure. 
The  demurrer  thus  raises  the  question  of  the  burden  of  proof 
in  a case  where  the  navigation  of  public  waters  has  been  ob- 
structed under  circumstances  that  constitute  a nuisance,  un- 
less those  concerned  are  authorized  by  competent  authority 
to  maintain  the  obstruction  in  the  manner  and  to  the  extent 
in  which  it  exists.  I have  no  hesitation  in  deciding  that  those 
who  obstruct  the  use  of  a public  highway,  whether  on  land 
or  water,  must  justify  the  act  by  producing  their  authority 
and  proving  that  they  have  exercised  it  in  essential  con- 
formity to  its  terms.  Their  act  is  an  encroachment  upon  the 
rights  common  to  all,  unless  they  have  a peculiar  privilege 
which  exempts  them  from  the  general  rule  of  obligation.  The 
fact  that  a bridge  over  navigable  waters  has  been  sanctioned 
by  Congress,  or  by  the  State  within  whose  limits  they  are 
situated,  and  that  it  has  been  built  by  the  person  or  corpor- 
ation authorized  to  build  it,  does  not  render  it  a legal  struc- 
ture, unless  as  built  it  conforms  to  the  terms  and  limitations 
of  the  authority.  * * 


If  tlio  (‘ontontioii  for  llio  (leinuri-oi*  is  sound,  il  would  d(}- 
volve  upon  a })Iaintiff,  wliose  ri^lit  to  ili(‘  navi^i^ation 

of  public*  waters  lias  been  interrupted  by  an  ini[)(*diin(uit  wliieh 
prinia  facie  is  a nuisance,  to  prove  that  the  defcuidant  acted 
under  an  assumed  authority,  but  was  not  justified,  because 
bis  actions  were  outside  of  the  limitations  of  his  authority  ; 
in  other  words,  to  negative  facts  by  way  of  defcmse  which 
are  peculiarly  within  the  knowledge  of  the  defendant.  It 
would  be  as  reasonable  to  contend  that  the  burden  of  proof 
is  upon  a plaintiff,  who  has  sued  an  officer  for  false  impris- 
onment for  taking  him  in  custody  on  the  public  highway,  to 
show  that  the  officer  acted  without  process,  or  under  void 
process,  or  without  probable  cause.’’ 

Approved  Texarkana  S Ft.  8.  Ry.  Co.  v.  Parsons,  (C.  C.  A.), 
74  Fed.,  408. 

* * * # * 

Doxsey  v.  Long  Island  R.  R.  Co.,  85  Hun.,  862,  Bernard,  P.  J.  : 

‘‘This  action  is  not  to  be  treated  as  one  based  upon  negli- 
gence. The  proof  is  clear  that  the  defendant  is  in  possession 
of  a railroad  running  from  and  between  Pearsalls  and  Loog 
Branch,  in  Queens  County.  This  road,  by  one  of  its  bridges, 
is  proved  to  have  closed  up  a common  water  highway.  The 
action  was  made  out  when  the  obstruction  was  established 
and  the  damage  resulting  therefrom.  It  was  for  those  who 
obstructed  or  who  assumed  the  road  with  the  obstruction  to 
the  water  highway”.  ? 

^<:  * * * * 

Cantrell  v.  Railivay  Co.,  90  Tenn.,  688. 

An  action  for  damages  for  the  unlawful  obstruction  of  the 
Clinch  Kiver.  By  Caldwell,  J.,  at  p.  648: 

“His  Honor,  the  trial  Judge,  in  his  charge  to  the  jury  con- 
strued the  statute  and  laid  down  the  law  as  to  necessary  ob- 
structions with  approximate  accuracy;  but,  after  doing  so,  he 
erroneously  instructed  them,  in  substance,  that  the  burden  of 
showing  that  the  obstructions  comi)lained  of  in  this  case 
were  not  lawful  rested  upon  the  plaintiff.  Having  done  that, 
he  committed  the  further  error  of  telling  the  jury  that  the 
plaintiff  had  introduced  no  such  proof,  and  that  they  should 
therefore  return  a verdict  for  the  defendant. 

The  general  rule  is  that  a party  may  not  lawfully' obstruct 
navigation.  To  bring  itself  within  an  exception  to  that  rule, 
, the  burden  was  upon  the  defendant  to  establish  all  the  facts 


necessary  to  constitute  the  exception.  The  fact  of  obstruc- 
tion having  been  shown,  by  the  plaintiff,  the  presumption  was 
tliat  it  was  unlawful,  and  to  escape  liability  for  damage,  it 
was  incumbent  on  the  defendant  to  show  that  it  had  done 
only  what  the  law  permitted  in  the  particular  case.’’ 


DIVISION  THREE. 


DIVISION  THREE. 

The  Des  Plaines  River  Is  a Navigable  Stream. 

I. 

CLASSIFICATION  OF  HISTORICAL  MATTER. 

The  historical  sources  concerning  the  navigability  of  the  Des 
Plaines  River  fall  naturally  into  three  broad  classes : 

A. 

Original  narratives  of  the  passage  of  the  Des  Plaines  River  by 
discoverers  and  traders. 

Among  these  are  the  following : 

A.  — Marquette  and  Joliet  having  learned  of  another  waterway 
to  Mackinac  than  the  one  by  the  Pox  and  Wisconsin  Rivers,  by 
which  they  reached  the  Mississippi,  went  up  the  Illinois  River  and 
the  Des  Plaines  River. 

Thwaites,  Jesuit  Relations,  LIX,  161  (Abst.,  p.  687). 

B.  — The  second  recorded  use  of  the  Des  Plaines  River  was  made 
by  Father  Marquette  on  his  second  voyage  to  the  Illinois  Indians. 

Thwaites,  Jesuit  Relations,  LIX,  187  (Abst.,  p.  688). 

C.  — A very  full  account  of  the  passage  from  Chicago  down  the 
Des  Plaines  in  1699  is  given  by  Father  St.  Cosme,  a priest  of  the 
Seminary  of  Foreign  Missions. 

Shea,  Early  Voyages  Up  and  Down  the  Mississippi,  54-56 
(Abst.,  p.  700). 

D.  — ;In  1783,  Jean  Baptiste  Perrault,  a trader  from  Montreal  to 
Caliokia,  spent  a year  in  the  latter  village,  where  he  collected  a load 
of  furs  and  other  goods  and  returned  to  the  lakes  by  the  Des 
Plaines  River  and  the  Chicago  portage. 

Schoolcraft,  Indian  Antiquities,  III,  351  (Abst.,  p.  703). 

E.  — In  1790,  Hugh  Heward,  a trader  from  Detroit,  after  making 
the  circuit  of  the  lakes  trading  at  different  points,  passed  down  the 
Des  Plaines  and  Illinois  to  Caliokia.  (Abst.,  p.  745.) 


F. — 1823,  Narrative  of  Provisions  for  Ft.  Dearborn  brought 
from  St.  Louis  up  the  Des  Plaines  (in  Account  of  Maj.  Long’s  Ex- 
pedition to  Sources  of  St.  Peter’s  River).  (Abst.,  p.  705.) 

D. — From  1825  onwards  John  Hamlin  of  Peoria  made  trading 
journeys  up  tlie  Des  Plaines  River  in  a Durham  boat. 

Drown,  Record  and  Historical  Review  of  Peoria,  83,  84 
(Abst.,  p.  679). 

H.  — In  1847,  a boat  with  sixteen  men  and  a yoke  of  oxen  was 
sunk  in  the  Des  Plaines  River. 

Joliet  Signal,  June  8,  1847  (Abst.,  pp.  403-4). 

I.  — A case  which  is  testified  to  by  George  W.  Reed  is  that  of 
the  carriage  of  farm  products  in  1834  down  the  Kankakee  River 
and  up  the  Des  Plaines  en  route  to  Chicago.  This  is  described 
in  Woodruff’s  History  of  Will  County.  (Abst.,  pp.  401-402.) 

Others  appear  in  the  evidence. 

B. 

CONTEMPOEARAY  STATEMENTS  THAT  THE  DES  PLAINES  RIVER  WAS 
NAVIGABLE. 

This  class  of  statements  may  be  further  divided  into  sub-classes. 

1.  Contemporary  directions  to  travelers  as  to  the  best  way  of 
getting  into  Illinois.  This  would  include  contemporary  maps  and 
guide  books.  As  historical  testimony  these  are  as  valuable  as 
Class  I. 

Among  these  are : 

A.  — Map  made  by  Marciuette  and  published  by  Thevenot  in  Paris 
in  1681 ; reproduced  by  Thwaites,  Jesuit  Relations,  LIX,  154,  shows 
the  portage.  (Abst.,  p.  1917.) 

B.  — Map  by  Joliet,  in  1674,  published  by  Thwaites  in  his  Jesuit 
Relations,  LIX,  page  86,  shows  the  portage.  (Abst.,  p.  1916.) 

C.  — Diana’s  Description  of  the  Bounty  Lands,  page  57,  Route  No. 
2,  printed  in  1819.  (Abst.,  p.  718.) 

D.  — The  Navigator,  printed  in  1824,  page  113.  (Abst.,  p.  719.) 

E.  — Gazeteer  of  the  States  of  Illinois  and  Missouri,  by  L.  C. 
Beck,  in  1823,  page  151.  (Abst.,  p.  723.) 


159 


F. — Illinois  ill  18:)7,  pii^es  .‘)4-:)().  (Abst.,  p.  722.) 

(Itliors  appear  in  the  evidence. 

2.  The  second  snb-class  is  niade  np  of  statements  hy  contem- 
poraries that  tlie  Fes  Plaines  River  was  used  as  a regular  water- 
way. Their  statements  show  contemporary  knowledge  and  are 
based  upon  a personal  investigation  or  personal  knowledge. 

a.  — ]\rarqiiette’s  statement  that  lie  and  Joliet  learned  from  the 
Indians  a shorter  waterway  to  the  Great  Lakes  than  the  Fox  and 
AVisconsin  route,  by  which  they  had  come.  The  shorter  route  was 
the  Illinois  and  Des  Plaines  Rivers,  as  is  shown  by  the  maps  which 
have  been  left  by  both  explorers.  Statement  in  Thwaite’s  elesnit 
Relations,  LIX,  page  161.  (Abst.,  p.  687.) 

b.  — Gabion’s  Suggestion  of  the  feasibility  of  making  a canal. 
This  is  based  upon  Joliet’s  observation,  printed  in  Margry,  Decou- 
verte  et  Etablissementes  des  Francais,  etc.,  1,  267.  (Abst.,  p.  713.) 

c.  — Statement  in  a letter  by  Governor  St.  Clair,  written  in  1790, 
printed  in  Smith’s  St.  Clair  Papers,  Vol.  1,  174.  (Abst.,  p.  728.) 

e.  — Major  Long’s  report  in  1817,  printed  in  the  United  States 
Government  publication  as  Executive  Document  No.  17,  16th  Con- 
gress, First  Session,  published  in  House  Documents  12  to  13,  Serial 
No.  32.  (Abst.,  p.  707.) 

f.  — James  Flint,  Letters  from  America,  1818-1820,  in  Thwaites, 
Early  AXestern  Travels,  IX,  186.  (Abst.,  p.  942.) 

g.  — George  Ogden,  Letters  from  the  AXest,  1821  to  1823,  in 
Thwaites,  Early  AXestern  Travels,  XIX,  54.  (Abst.,  730.) 

h.  — Report  of  Committee  on  Roads  and  Canals,  March  30,  1826. 
Report  No.  53  in  Report  of  Committees,  Second  Session,  Eighteenth 
Congress.  (Abst.,  p.  732.) 

Alan}"  others  appear  in  the  evidence. 

C. 

Conclusions  reached  by  historians  of  recognized  standing  after 
making  a study  of  the  sources  of  material  in  regard  to  the  naviga- 
bility of  the  Des  Plaines  River. 

A. — Parkman,  LaSalle  and  the  Discovery  of  the  Great  AXest,  69. 


B.  — Justin  WinS'or,  Mississippi  Basin,  page  24. 

C.  — L.  Ferrand,  in  Hart’s  American  Nation,  Vol.  II,  26. 

D.  — Beuben  G.  Thwaites,  in  Wisconsin  Historical  Collections, 
XVI,  672.  (Abst.,  pp.  734-748.) 

Others  appear  in  the  evidence. 


2.  HISTORICAL  MATTER  CHRONOLOGICALLY  ARRANGED. 

1673. — Marquette  and  Joliet  made  a voyage  from  St.  Ignace,  on  the 
Straits  of  Mackinac,  through  Lake  Michigan  and  Green  Bay, 
descending  through  the  Fox  Biver,  Wisconsin  and  Mississippi 
Bivers,  as  far  as  the  Arkansas,  and  then  ascending  the  Missis- 
sippi and  up  the  Illinois  and  up  the  Des  Plaines  to  Chicago. 

Marquette’s  account,  59  Thwaites’  Jesuit  Belations,  pp. 
161-7.  (Abst.,  pp.  685-699.) 

89-161  (Alvord’s  Ex.  7,  Abst.,  p.  712;  Parkman’s  ‘‘La- 
Salle and  the  Discovery  of  the  Great  West,”  “Alvord’s 
Ex.  14,  pp.  51-65,  Abst.,  p.  733). 

Winsor  describing  this  trip  says  : 

“After  ascending  the  stream,  he  entered  the  Illinois  Biver. 
which  he  designated  as  the  Divine  or  Outrelaise,  in  compli- 
ment, it  is  supposed,  to  Frontenac’s  wife,  a daughter  of  La- 
Grange  Trianon,  noted  for  her  beauty,  and  Mademoiselle 
Outrelaise,  her  fascinating  friend,  who  were  called  in  court  cir- 
cles “les  Divines”  (Parkman,  Discovery  of  the  Great  West, 
p.  154).  Upon  the  wmst  bank  of  one  of  its  tributaries,  the 
Des  Plaines  Biver,  there  stands  above  the  prairie  a remark- 
able elevation  of  clay,  sand  and  gravel,  a lonely  monument 
which  has  withstood  the  erosion  of  a former  geologic  age.  It 
was  a noted  landmark  to  the  Indians  in  their  hunting  and  to 
the  French  voyagers  on  their  trading  expeditions.  By  this 
Joliet  was  impressed,  and  he  gave  the  elevation  his  own  name, 
Mount  Joliet,  which  it  has  retained  while  all  others  that  he 
marked  on  his  map  have  been  forgotten.” 

(4  Winsor,  Narrative  and  Critical  History  of  America, 
pp.  178-179.)  (Abst.,  p.  974.) 

Marquette’s  account  of  this  voyage  states: 

“We  therefore  re-ascended  the  Mississippi,  which  gives  us 
much  trouble  in  breasting  its  currents.  It  is  true  that  we 
leave  it,  at  about  the  38th  degree,  to  enter  another  river,  which 
greatly  shortens  our  road,  and  takes  us  with  but  little  effort 
to  the  lake  of  the  Illinois. 


“We  have  seen  niothin^'  like  tliis  riven*  llial  vv(‘  (mien*,  as 
regards  its  fertility  of  soil,  its  prairies  and  Woods,  its  cattle, 
elk,  deer,  wildcats,  bustards,  swans,  diu'.ks,  parroepuds  and 
even  beaver.  There  are  many  small  lake's  and  rivers.  'Idiat 
on  which  we  sailed  is  wide,  deep  and  still,  for  05  leagues.  In 
the  spring  and  during  part  of  tlie  snmmer  there  is  only  om^ 
portage  of  half  a league.’^  (Lake  Michigan.) 

(59  Jes.  Reh,  161.)  (Abst.,  pp.  686-7.) 

> 

Tills  narrative  is  also  translated  and  published  by  Chief  Justice 
Breese  in  his  Early  History  of  Illinois,  pp.  235-270.  This  passage 
occurs  on  p.  269.  (x\bst.,  p.  737.) 

1674. — ^Joliet  returned  to  Quebec  and  reported  their  discoveries  to 
Governor  Frontenac,  to  his  friend,  Father  Dablon,  who,  Au- 
gust 11,  1674,  wrote  the  relation  which  bears  his  name,  enti- 
tled “Relation  de  la  discouverte  de  plusieurs  pays  situeg  an 
midi  de  la  Nouvelle-France  faite  en  1673.” 

He  says : 

“The  fourth  remark  concerns  a very  great  and  important 
advantage,  which  perhaps  will  hardly  be  believed.  It  is  that 
we  could  go  with  facility  to  Florida  in  a bark  and  by  very  easy 
navigation.  It  would  only  be  necessary  to  make  a canal  by 
cutting  through  but  half  a league  of  prairie,  to  pass  from  the 
foot  of  the  Lake  of  the  Illinois  to  the  River  Saint  Louis., 
Here  is  the  route  that  wTuild  be  followed:  The  bark  would  be 
built  on  Lake  Erie,  which  is  near  Lake  Ontario;  it  would  eas- 
ily |>ass  from  Lake  Erie  to  Lake  Huron,  whence  it  would  enter 
Lake  Illinois.  At  the  end  of  that  lake  the  canal  or  excavation 
of  which  I have,  spoken  would  be  made,  to  gain  a passage  into 
the  River  Saint  Louis,  which  falls  into  the  Mississippi.  The 
bark,  when  there,  would  easily  sail  to  the  Gulf  of  Mexico.” 

(Abst.,  p.  713.) 

1674. — And  Governor  Frontenac,  re])orting  Noveml)er  14,  1674,  to 
the  French  Government,  said : 

“Sieur  Joliet,  whom  Monsieur  Talon  advised  me  on  my  ar- 
rival from  France  to  despatch  for  the  discovery  of  the  South 
Sea,  returned  three  months  ago,  and  found  some  very  tine 
countries  and  a navigation  so  easy  tlirougli  the  beautiful  rivers 
that  a person  can  go  from  Lake  Ontario  and  Fort  Frontenac 
in  a bark  to  the  Gulf  of  Mexico,  there  being  only  one  carrying 
place,  half  a league  in  length,  where  Lake  Ontario  commiini- 
' cates  with  Lake  Erie.  * * * j send  you,  by  my  secretary, 

, the  map  he  has  made  of  it.” 

'i.  (Abst.,  p.  1661.) 


Joliet  at  that  time  made  two  maps,  wliieli  are  described  by  Park- 
man  in  tlie  ^‘Discovery,”  pp.  452-d,  as  follows: 

1674. — '‘Ot  fai-  .greater  interest  is  the  small  map  of  Louis  Joliet, 
made  and  presented  to  Count  Frontenac  after  the  discoverer’s 
i-eturn  from  the  Mississippi,  it  is  entitled  Carte  cle  la  de- 
coiiverie  du  S.  Joliet  ou  Von  voit  La  Communication  du  fleuue 
St.  Laurens  aiiec  les  lacs  frontenaCj  Erie,  Lac  de  Enrons  et 
Illinois.  Tlien  succeeds  the  following,  written  in  the  same  an- 
tiquated French,  as  if  it  were  a part  of  the  title:  ‘Lake  Fron- 
tenac  (Ontario)  is  separated  by  a fall  of  half  a league  from 
Lake  Erie,  from  which  one  enters  that  of  the  Hurons  and  by 
the  same  navigation,  into  that  of  the  Illinois  (Michigan)  from 
the  head  of  which  one  crosses  to  the  Divine  River  (Riviere 
Divine;  i.  e.,  the  Des  Plaines  branch  of  the  River  Illinois),  by 
a irortage  of  a thousand  paces.  This  river  falls  into  the  River 
Colbert  (Mississippi),  which  discharges  itself  into  the  Gulf 
of  Mexico.’  (Abst.,  pp.  738-9.) 

* * Joliet,  at  about  the  same  time,  made  another 

map,  larger  than  that  just  mentioned,  but  not  essentially  diP 
ferent.  * * *’’ 

The  latter  Joliet  map  is  republished  in  59  Jes.  Rel.,  p.  86,  and  in 
4 AVinsor,  p.  208,  and  is  reproduced  in  evidence  as  Alvord  Ex.  1 
(Abst.,  p.  1916). 

It  represents  the  Illinois  River  with  the  name  Riviere  de  la 
Divine  ou  L'Outrelaise,  as  a continuous  line  of  river  from  Lake 
Michigan  to  the  Mississippi,  and  with  the  label  “Portage”  closely 
corresponding  with  the  connection  between  the  Chicago  and  Des 
Plaines  Rivers. 

Of  this  map,  Winsor  says : 

1674. — “Within  a few  years  there  has  been  produced  a map  which 
seems  to  have  been  made  by  Joliet  immediately  after  his  re- 
turn to  Montreal.  This  would  make  it  the  earliest  map  of  the 
Mississippi  based  on  actual  knowledge,  and  the  first  of  a series 
accredited  to  Joliet.  It  is  called  Nouvelle  decouverte  de  pin- 
sieurs  nations  dans  la  Nouvelle  France  en  Vcmnee,  1673  et  1674. 
Gabriel  Gravier  first  made  this  map  known  through  an  Etude 
sur  une  carte  inconnue;  la  premiere  dresse  par  L.  Joliet  en 
1674,  apres  sons  exploration  du  Mississippi  auec  Jacques  Mar- 
quette en  1673.  A sketch  of  it  with  a key  is  given  herewith. 
The  table  in  the  sketch  marks  the  position  of  Joliet’s  letter 
to  Frontenac,  of  which  a reduced  fac-simile  is  also  annexed. 

“ ‘In  this  epistle,’  says  Mr.  Neill,  ‘Joliet  mentions  that  he 
had  presented  a map  showing  the  situation  of  the  lakes  upon 
which  there  is  navigation  for  more  than  1,200  leagues  from 


u;:} 


east  to  west,  and  that  lie  had  given  to  tlie  great  river  h(jyond 
the  lakes,  wliicli  lie  had  discovered  in  the  years  1f)7.‘)-1f)74,  the 
designation  of  P>aiide,  tlie  family  name  of  hk’ontenac.  ” 

(Foot  Note)  : 

^^The  Jesuit  Kelations  call  it  the  ‘Grande  Riviers’  and  the 
Messi-sipi;  Marquette  calls  it  ‘Conception’;  and  in  1674  it  was 
called  after  Colbert.  See  an  essay  on  the  varying  application 
of  names  to  the  western  lakes  and  rivers  in  Hurlbut’s  Chicago 
Antiquities.’^ 

1674-5. — Marquette  returned  to  Chicago  late  in  1674,  and  win- 
tered “two  leagues”  from  the  lake,  adjacent  to  the  west  fork 
of  the  south  branch  of  the  Chicago  River;  on  March  29,  1675, 
he  was  driven  from  his  cabin  by  flood  waters  and  took  refuge 
on  a “hillock.”  Father  Dablon’s  account  of  Marquette’s  voy- 
age is  given  in  59  Jesuit  Relations,  pp.  185-211,  and  the  fac- 
simile of  portions  of  Marquette’s  original  Mms,  Journal  on 
pp.  212-15. 

The  same  is  in  evidence  (Abst.,  p.  686). 

Says  Father  Dablon: 

“His  health  improving,  he  prepared  himself  to  go  to  the 
village  of  the  Illinois  as  soon  as  navigation  should  open — 
which  he  did  with  much  joy,  setting  out  for  that  place  on  the 
29th  of  March.  He  spent  eleven  days  on  the  way,  during 
which  time  he  had  occasion  to  sutler  much  both  from  his  own 
illness,  from  which  he  had  not  entirely  recovered,  and  from 
the  very  severe  and  unfavorable  weather. ” (Id.) 

It  was  of  this  that  Parkman  says  (“Discovery,”  pp.  68-69) : 

“Ow  the  thirtieth  of  the  month  (March)  they  left  their  hut, 
tvhich  had  been  inundated  by  a sudden  rise  of  the  river  and 
carried  their  canoe  through  miul  and  ivater  over  the  portage 
which  led  to  the  Des  Plaines.  Marquette  kneiv  the  ivay,  for  he 
had  passed  by  this  route  on  his  return  from  the  Mississippi. 
Amid  the  rains  of  opening  spring,  they  floated  down  the  swoll- 
en current  of  the  Des  Plaines,  by  naked  woods  and  spongy, 
'saturated  prairies,  till  they  reached  its  junction  with  the  main 
stream  of  the  Illinois,  which  they  descended  to  their  destina- 
tion, the  Indian  town  which  Marquette  calls  Kaskaskia.  Here, 
as  we  are  told,  he  was  received  like  ‘an  angel  from  Heaven.’ 
He  passed  from  wigwam  to  wigwam,  telling  the  listening 
crowds  of  God  and  the  Virgin,  Paradise  and  Hell,  angels  and 
demons;  and  when  he  thought  their  minds  prepared,  he  sum- 
moned them  all  to  a grand  council. 

“It  took  place  near  the  town,  on  the  great  meadow  which  lies 
between  the  river  and  the  modern  village  of  Utica.  Here  five 
hundred  chiefs  and  old  men  were  seated  in  a ring;  behind  stood 


fifteen  liiiiidred  youths  and  warriors,  and  behind  these  again 
all  the  women  and  eliildren  of  the  village.” 

1677.-41  le  next  ina])  is  described  by  I^irkman  as  follows: 

“Three  years  or  more  after  (lalinee  made  the  map  men- 
tioned al)ove,  another,  indicating  a greatly  increased  knowl- 
edge of  tlie  country,  was  made  by  some  ])erson  wliose  name 
does  not  a])i)ear.  This  map,  which  is  somewhat  more  tlian  four 
feet  long  and  about  two  feet  and  a lialf  wide,  lias  no  title.  All 
the  Great  Lakes,  through  their  entire  extent,  are  laid  down 
on  it  with  considerable  accuracy.  Lake  Ontario  is  called  ‘Lac 
Ontario  on  de  Frontenac.’  Fort  Frontenac  is  indicated  as 
well  as  the  Iroquois  colonies  of  the  north  shore.  Niagara  is 
‘Ohute  haute  de  120  toises  par  on  le  Lac  Erie  tombe  dans  le 
Lac  Frontenac.’  Lake  Erie  is  ‘Lac  Teiocha-rontoing,  dit  com- 
munement.  Lac  Erie.’  Lake  St.  Clair  is  ‘Tsiketo,  ou  Lac  de  la 
Ohaudiere.’  Lake  Huron  is  ‘Lac  Huron  ou  Mer  Douce  des 
Hurons.’  Lake  Superior  is  ‘Lac  Superieur.’  Lake  Michigan 
is  ‘Lac  Mitchiganong,  ou  des  Illinois.’  On  Lake  Michigan, 
immediately  opposite  the  site  of  Chicago,  are  written  the 
words,  of  which  the  following  is  the  literal  translation:  ‘The 
largest  vessels  can  come  to  this  place  from  the  outlet  of  Lake 
Erie,  where  it  discharges  into  Lake  Frontenac  (Ontario)  ; and 
from  this  marsh  into  which  they  can  enter  there  is  only  a 
distance  of  a thousand  paces  to  the  Kiver  La  Divine  (Des 
Plaines),  which  can  lead  them  to  the  River  Colbert  (Mississip- 
pi) and  thence  to  the  Gulf  of  Mexico.” 

Parkman,  LaSalle  and  the  Discovery  of  the  Great  West, 
p.  450.  (Abst.,  p.  738.) 

In  this  year  Fabano  Thevenot  published  in  Paris  Marquette’s 
niap  in  connection  with  an  account  of  his  voyage.  This  also  is 
reproduced  in  59  Jes.  Eel.,  p.  154,  and  is  in  evidence  (Abst.,  p. 
1917).  It  shows  the  route  of  the  voyage  of  Joliet  and  Marquette, 
both  going  and  returning,  and  bears  the  label  “Portage”  both  at 
the  passage  from  the  Chicago  to  the  Des  Plaines  and  from  the 
Fox  to  the  Wisconsin. 

1682,  January  2-3. — ^LaSalle  (as  he  afterwards  writes): 

“After  marching  three  days  along  the  lake  and  reaching  the 
division  line  called  Chicago,  were  stopped — after  a day’s  march 
along  the  river  of  the  same  name  which  falls  into  the  Illinois— 
hy  the  ice,  which  entirely  prevented  further  navigation.  This 
was  the  2nd  or  3rd  of  January,  1682.”  (Abst.,  p.  733  et  seq.) 

(2  Mag.  Am.  Hist.,  552.) 


‘^The  snotvs  hiaving  clctainod  mo  some  days  at  tli(j  f)orta^^o  of 
Chicago.  This  is  an  isthmus  of  land,  at  41.  dogroos  50  mirnitos 
N.  at  the  west  of  the  Illinois  Lake,  which  is  reached  liy  a (dian- 
nel  formed  by  the  function  of  several  rivulets  or  meadow 
ditches.  It  is  navigable  for  about  two  leagues  to  the  edge  of 
the  prairie,  a quarter  of  a league  westward,  ddiere  is  a little 
lake  divided  by  a causeway  made  by  the  beavers  about  a league 
and  a half  long  from  which  rims  a stream,  which  after  wind- 
ing about  a half  a league  through  the  rushes,  empties  into  the 
River  of  Chicago,  and  thence  into  that  of  the  Illinois.  This 
lake  is  filled  by  heavy  summer  rains  or  spring  freshets,  and 
discharges  also  into  the  channel  which  leads  to  the  Lake  of  the 
Illinois,  the  level  of  which  is  7 feet  lower  than  the  prairie  on 
which  the  lake  is. 

^^The  Biver  of  Chicago  does  the  same  thing  in  the  spring 
when  its  channel  is  full.  It  empties  a part  of  its  ivaters  hy  this 
little  lake  into  those  of  the  Illinois,  and  at  this  season,  Joliet 
says,  forms  in  the  summer  time  a little  channel  for  a quarter 
of  a league  from  this  lake  to  the  basin  ivhich  leads  to  that  of 
the  Illinois,  hy  tvhich  vessels  can  enter  the  Chicago  and  de- 
scend to  the  sea.  This  may  very  ujell  happen  in  the  spring,  hid 
not  in  the  summer,  because  there  is  no  ivater  at  all  in  the  river 
as  far  as  Fort  St.  Louis,  where  the  Illinois  begins  to  be  navi- 
gable at  this  season,  whence  it  continues  to  the  sea.’^  (Abst., 
p.  969.)  ^ • 

^^It  is  true  there  is  another  difficulty  which  the  proposed 
ditch  would  not  remedy,  which  is  that  the  lake  of  the  Illinois 
always  forms  a sand  bar  at  the  mouth  of  the  channel  ivhich 
leads  to  it,  and  I greatly  doubt,  notwithstanding  what  is  said, 
that  it  could  be  cleared  or  swept  away  by  the  force  of  the  cur- 
rent of  the  Chicago,  since  much  greater  in  the  same  lake  has 
not  removed  it.”  (Abst.,  p.  970.) 

Again  he  says  (2  Margry,  31,  Sept.  27,  1680),  writing  from  an 
unnamed  place  (?)  : 

^‘From  there  (the  foot  of  Lake  Michigan)  canoes  only  can 
navigate  to  the  village  of  the  Illinois.’^  (Abst.,  p.  971.) 

That  is,  LaSalle,  having  seen  the  river  in  Jannary,  thought  that 
it  would  not  have  water  enough  in  July,  and  thought  tlie  sand  bar 
at  the  mouth  of  the  Chicago  an  insuperable  obstacle. 

Joliet  and  Marquette,  Jesuits,  Jiad  located  their  cabin  on  the 
Chicago  in  1673-5 ; LaSalle  coming  later,  in  1682,  and  greatly  hos- 
tile to  the  Jesuits,  was  interested  in  the  Fort  Miami  at  St.  Joseph, 
and  built  Ft.  Creve  Coeur  at  Peoria,  and  desired  to  turn  the  line 
of  travel  that  way.  It  was  the  rivalry  between  St.  Joseph  and 


Chicago — hetween  the  Kankakee  route  and  the  Des  Plaines  route — 
between  the  southeast  and  soutliwest  shores  of  Lake  Michigan — ^al- 
ready begun — in  whicli  Chicago,  the  Southwest,  and  the  Des  Plaines 
route  were  successful. 

1682. — In  H emiepin\s  account  of  the  same  trip  (January,  1682)  he 
exaggerates  the  difficulties  as  follows  : 

‘^The  Creek  (Chicago  River)  through  which  we  went  from 
the  Lake  of  the  Illinois  into  the  Divine  River,  is  so  shallow  and 
so  much  exposed  to  storms,  no  ship  can  venture  to  get  in  unless 
it  be  in  a great  calm.  Neither  is  the  country  between  the  said 
creek  and  the  Divine  River  fit  for  a canal,  for  the  meadows 
between  them  are  drowned  after  any  great  rain,  and  so  a canal 
will  be  immediately  filled  up  with  sand,  and  besides  it  is  im- 
possible to  dig  the  ground  because  of  the  water,  that  country 
being  nothing  but  a morass ; but  supposing  it  were  possible  to 
cut  the  canal,  it  would  be,  however,  useless  for  the  Divine 
River  is  not  navigable  for  forty  leagues  altogether  ; that  is, 
from  that  place  to  the  village  of  the  Illinois,  except  for  canoes^ 
who  have  hardly  water  enough  in  the  summer  time;  besides 
this  difficulty  there  is  a fall  near  the  village.’’  (Abst.,  p. 
972.) 

1682. — Membre,  LaSalle’s  companion,  again  says  in  his  letter 
headed,  River  of  the  Mississippi,  3 June,  1682”: 

‘‘Since  his  arrival  at  the  place  mentioned  we  left  from  there 
with  M.  DeTonte  some  days  before  M.  De  LaSalle,  who  joined 
us  on  Chicago,  where  another  lot  of  his  men  joined  us  also,  so 
that  all  were  assembled  at  the  beginning  of  January,  1682,  at 
the  place  where  Chicago  enters  into  the  river  of  the  Illinois, 
and  as  it  was  frozen  like  the  one  we  came  from,  we  continued 
our  route  on  the  ice,  pulling  our  canoes  and  belongings  not 
only  to  the  village  of  the  Illinois,  where  we  met  nobody,  all 
wintering  somewhere  else,  but  thirty  leagues  further  down  to 
the  end  of  Lake  Pimedy,  where,  finding  navigation  open,  we 
descended  in  canoes  said  river  to  the  Mississippi.” 

In  that  same  volume,  the  reprint  appearing  on  page  552  of  the 
Magazine  of  American  History,  volume  two. 

This  shows  that  the  “navigation  open”  and  “beginning  of  navi- 
gation” of  which  LaSalle  spoke,  was  “open”  and  “beginning”  be- 
cause free  from  ice. 

Of  the  same  matter,  the  history  of  Illinois  by  Moses,  introduced 
by  the  other  side,  says : 

“There  were  four  possible  routes  which  could  be  used  in  go- 
ing to  the  Illinois  from  eastern  Canada,  the  choice  of  whicli 


deDendod  upon  the  stage  ot  watei*  and  s(‘asoii  of  tlui  year,  and 
tiift  startiiii^  and  the  objective  poinfts. 

'“1.  One  of  these  was  from  Lake  Michigan  })y  tlie  Oalnrnet 
Uivers,  which  connect  with  Stony  Brook,  from  wtiicli  hy  a short 
portage  the  Des  Plaines  was  easily  reached.  Beck,  in  his  Gaza- 
teer  of  1823,  says,  in  speaking  of  this  route:  ‘The  distance  is 
eighteen  miles,  and  (2309)  it  is  nearly  on  a level  with  the  lake 
It  is  said  boats  have  frequently  passed  through  this  channel 
to  the  Des  Plaines,  and  when  such  is  the  case  it  is  impossible  in 
many  places  to  say  whether  the  current  sets  to  the  lake  or  to 
the  Des  Plaines.  About  half  way  between  the  lake  and  the 
Des  Plaines,  a feather  will  sometimes  float  one  way  and  some 
times  the  other.  ’ 

“2.  By  the  Grand  Calumet  this  stream,  rising  a few  miles 
southeast  of  Lake  Michigan,  near  what  is  now  LaPorte,  Indi- 
ana, ran  to  a point  at  present  called  Blue  Island,  in  Cook 
County,  and  thence  turning  flowed  back  about  three  miles 
north  of  its  outward  course,  and  emptied  into  Lake  Michigan 
at  a point  formerly  called  Indiana  City.  This  route  cow 
nected  ivith  the  Des  Plaines,  the  same  as  route  1. 

“3.  By  the  St.  Joseph  Eiver.  Ascending  this  fstream  about 
thirty-five  miles,  the  head  waters  of  the  Kankakee  Kiver  were 
reached  by  a portage  of  about  four  miles.  The  distance  to  the 
Illinois  River  by  the  Kankakee  was  180  miles,  but  only  80 
across  the  country. 

“4.  By  the  Chicago  River:  The  distance  by  this  route 
from  the  lake  to  Des  Plaines  by  the  south  branch,  including  a 
portage  of  four  miles,  was  tirelve  miles.  The  north  branch  was 
also  doubtless  sometimes  used,  although  not  so  direct.  Now, 
if  a wayfarer  was  on  the  Illinois  River,  and  desired  to  reach 
mission  of  St.  Francis  Xavier,  at  Green  Bay,  as  did  Joliet  in 
1673,  the  most  direct  and  (2310)  feasible  of  the  above  discov- 
ered routes,  would  be  either  the  1st  or  4th.  And  whichever 
way  was  taken  by  Joliet  and  Marquette,  in  September,  1673, 
on  their  return  trip,  was  adopted  by  Marquette  on  the  second 
trip  in  1675,  for  he  observes  in  his  journal  of  the  latter: 
‘March  31st:  Here  we  began  our  portage  more  than  eighteen 
months  ago.  ’ 

“The  mariner  desiring  to  reach  Illinois  from  Mackinac,  it 
would  be  nearer  to  proceed  down  the  east  side  of  Lake  Michi- 
gan to  the  Grand  Calumet,  and  up  that  stream  connected  with 
Route  1.  But  in  1679  LaSalle,  being  at  Green  Bay,  appointed 
the  mouth  of  the  St.  Joseph  as  a place  of  rendezvous  for  liis 
expedition  in  route  for  Illinois,  and  ordered  Tonty  to  proceed 
thither  on  the  east  side  of  the  lake,  while  he  coasted  along  its 
western  and  southern  sides.  He  may  have  known  of  the  St. 
Joseph  route,  which  he  then  pursued,  and  not  of  the  other;  or, 
it  being  a ivinter,  it  may  have  been  more  a question  of  good 


ii'djjs  for  sleighs  than  of  irater  navigation.  At  alJ  events,  on 
this  oeeasion,  lie  took  tlie  Kankakee  route,  and  he  doubtless 
icenf  over  the  same  course  on  his  second  trip  in  searching  for 
Tontg.  On  liis  tliird  trip  to  the  Illinois,  ivhich  teas  also  in  the 
u'inter,  l()81-2,  he  mentions  the  Chicago  River;  and  as  the 
Crand  Calumet  is  plainly  marked  urith  this  name  on  his  map, 
reeently  discovered  in  Paris,  and  published  by  Margry,  and  as 
that  (2311)  would  be  a nearer  and  better  route  in  the  winter 
than  the  Kankakee,  or  that  by  the  Ohicago  River  is  now  known’ 
it  is  fair  to  presume  that  w2ien  he  alluded  to  the  ‘Chicago 
Route’  he  referred  to  the  passage  of  the  Grand  Calumet. 

“As  early  as  1698  a mission  had  been  established  among 
the  Miamis,  called  Chicago.  It  is  evident  that  this  mission 
was  on  the  route  usually  followed  by  travelers,  wherever  that 
was,  along  the  southwestern  shore  of  Lake  Michigan.  St. 
Cosme  and  party  undoubtedly  followed  this  route  in  1699,  as 
did  Father  Grevier  the  year  following.” 

1721. — Sept.  17,  Charlevoix  wrote  from  the  head  waters  of  the 
Kankakee  that  there  were  two  ways  to  go  from  St.  Joseph  or 
Ft.  Miami,  to  the  Illinois  : 

“The  first  was  to  return  to  Lake  Michigan  (from  St.  Jo- 
seph), coast  the  south  shore,  and  to  enter  the  little  River  of 
Chicago,  after  going  up  it  five  or  six  leagues,  then  pass  into 
that  of  the  Illinois  by  means  of  two  portages,  the  longer  of 
which  is  but  a league  and  a quarter.  But  as  this  river  is  but  a 
brook  in  this  place,  I was  informed  that  at  that  time  of  the 
year  I should  not  find  water  enough  for  my  canoe.  Therefore, 
I took  the  other  route,  which  has  also  its  inconvenience,  and  is 
not  near  so  pleasant,  but  it  is  the  surest.  I departed  yester- 
day^ from  the  forks  of  the  river  St.  Joseph  and  I went  up  that 
river  about  six  leagues.”  (Abst.,  p.  972.) 

1699.— St.  Cosine’s  letter  to  the  Bishop  of  Quebec,  describing  his 
voyage,  is  translated  and  reprinted  in  John  Gilmary  Shea’s 
Early  Voyages  Up  and  Down  the  Mississippi,  and  from  it  we 
make  the  following  extracts : 

“We  started  from  Chicaqw  on  the  29th  and  put  up  for  the 
night  about  two  leagues  off,  in  the  little  river  which  is  then 
lost  in  the  xirairies.  The  next  day  we  began  the  portage  which 
is  about  three  leagues  long  when  the  water  is  low,  and  only  a 
quarter  of  a league  in  the  spring  for  you  embark  on  a little 
lake  that  empties  into  a branch  of  the  river  of  the  Illinois,  and 
when  the  waters  are  low,  you  have  to  make  a portage  to  that 
branch.” 

*********** 

“I  set  out  the  second  of  Xovember  in  the  afternoon,  made 
the  portage  and  slept  at  the  River  of  the  Illinois;  we  went 
down  the  river  to  an  island.  During  the  night  we  were  sur- 
prised to  see  an  inch  of  snow,  and  the  next  day  the  river  frozen 


In  sevoral  ])iaces,  yot  W'O  liad  to  break  tlio  ice  {ind  (]ra<^  the 
canoe  l)e(‘aiise  there  was  no  water;  this  toreed  iis  to  leaver  our 
canoe  and  go  in  search  of  Mr.  de  Montigny,  whom  we  overtook 
next  day,  the  5th  of  tlie  montli,  at  Stag  Island  (Isle  auxe 
Cerfs).  They  had  already  made  two  leagues  portage,  and 
there  were  still  four  to  make  to  Monjolly  (Mount  Joliet),  which 
we  made  in  three  days  and  arrived  on  the  8th  of  the  month. 
From  Isle  a la  Cache  to  Monjolly  is  the  space  of  seven  leagues. 
You  must  always  make  a portage,  there  being  no  water  in  the 
river  except  in  the  spring. 

**  ******** 

^^On  leaving  Monjolly  we  made  about  two  leagues  to  another 
little  portage  of  about  a quarter  of  a league.  As  one  of  our 
men,  named  Charbonneau,  had  killed  several  turkeys  and  geese 
in  the  morning  and  a deer,  we  did  well  to  give  somewhat  of  a 
treat  to  oiir  people  and  let  them  rest  for  a day. 

^A)n  the  10th  we  made  the  little  portage  and  found  half  a 
league  of  water,  and  then  two  men  towed  the  canoe  for  a 
league ; the  rest  marched  on  laud,  each  with  his  pack,  and  we 
embarked  for  the  space  of  ajeague  and  a half  and  stopped  for 
the  night  at  a little  portage  five  or  six  larpens  off. 

‘^On  the  11th,  after  making  the  little  portage,  we  came  to 
the  Fiver  Tealike,  which  is  the  real  river  of  the  Illinois;  that' 
which  we  had  descended  being  only  a branch.  AYe  put  all  our 
affairs  in  the  canoe,  which  two  men  towed,  while  Mr.  de  Tonty 
and  we  with  the  rest  of  our  men  marched  on  land,  always 
through  beautiful  prairies.  We  arrived  at  the  village  of  the 

Peanzichias  Miamis,  who  formerly  dwelt  on  the  of 

the  Mississippi  and  who  some  years  since  came  and  settled 
in  this  place.  There  was  no  one  in  the  village,  all  having  gone 
out  hunting.  We  went  that  day  to  halt  near  Massacre,  which 
is  a little  river  that  em])ties  into  the  Fiver  of  the  Illinois.  * * * 

“After  having  had  to  carry  our  baggage  for  three  days,  and 
put  it  all  together  in  the  canoe,  the  river  being  low  and  full  of 
rocks,  we  arrived  on  the  15th  of  November  at  the  place  called 
the  Old  Port.  It  is  a rock  which  is  on  the  bank  of  the  river 
about  a hundred  feet  high,  where  Mr.  de  LaSalle  built  a fort 
which  he  abandoned.  The  Indians  having  gone  to  stay  about 
twenty-five  leagues  lower  dowry  we  slept  a league  below,  where 
we  found  two  Indian  cabins.  We  were  consoled  to  see  one 
perfectly  good  Christian  woman. 

^ “From  Chicagvv  to  the  Fort  they  reckon  thirty  leagues. 
Here  navigation  begins,  which  continues  uninterrupted  to  the 
Fort  of  the  Permavevvi,  where  the  Indians  are  now.  We  ar- 
rived there  on  the  19th  of  November.  We  found  F.  Father 
Pinet  there,  who  not  being  loaded  when  they  started  from  Chh 
cagou  had  arrived  here  six  or  seven  days  before  us.  ” ( “ Early 
Voyages  Up  and  Down  the  Mississippi,”  Shea,  pp.  54-59.) 


1783. — Treaty  between  United  States  and  Great  Britain. 

1783.  — Act  of  Virginia,  Dec.  20,  authorized  the  cession  of  tlie  terri- 
tory to  the  United  States. , 

1784.  — ^Marcli  1,  Virginia  ])eed  of  Cession  to  United  States. 

1787. — Ordinance  of  July  13  organized  the  Territory  Northwest  of 
the  Ohio  and  provided  as  follows : 

‘‘Section  14,  Art.  IV. — * * The  navigable  waters  lead- 
ing into  the  Mississippi  and  Saint  Lawrence,  and  the  carrying 
places  between  the  same  shall  be  common  highways  and  for- 
ever free  as  well  to  the  inhabitants  of  the  said  territory  as  to 
the  citizens  of  the  United  States  and  those  of  any  other  states 
that  may  be  admitted  into  the  Confederacy  without  any  tax, 
impost  or  duty  therefor.’^ 

1789. — Aug.  7,  an  Act  was  passed  by  the  First  Congress  under  the 
new  constitution,  entitled:  “An  Act  to  Provide  for  the  Gov- 
ernment of  the  Territory  Northwest  of  the  Eiver  Ohio,’’  be- 
ginning : 

“Whereas,  in  order  that  the  ordinance  of  the  United  States, 
in  Congress  assembled  for  the  government  of  the  territory 
northwest  of  the  Ohio  may  continue  to  have  full  effect,  it  is 
requisite  that  certain  provisions  should  be  made  so  as  to  adapt 
the  same  to  the  present  constitution  of  the  United  States. 

Be  it  enacted,  etc.  (1  U.  S.  Stat.  at  Large,  p.  50.) 

1790. - — Extract  of  manuscript  of  Mr.  Reward,  entitled  “Journal 
of  a Voyage  made  by  Mr.  Hugh  Reward  to  the  Illinois  Coun- 
try, ’ ’ the  original  manuscript  of  which  is  the  property  of  Mr. 
C.  M.  Burton  of  Detroit,  and  a copy  of  the  same  is  found  in  the 
Chicago  Historical  Society. 

On  page  22  of  the  Chicago  Historial  Society’s  copy  we  find  the 

following: 

^‘Sunday,  May  9th  1790  a Wind  at  South  AVest  inclining 
from  the  Land  loaded  & set  off — our  Course  in  a Bend  nearly 
Nore  IVest  a Strong  Wind  from  South  South  "West  but  we 

were  cover  ’d  a little  it  being  off  the  land with  

arrived  at  Grand  Calamanuk  & afterwards  at  Little  Calamanuk 
the  Course  Nore  West  and  from  there  arrived  as  by  a North 
Course  under  sail  at  Chicago  under  reefed  sail  the  wind  very 
strong  & in  blasts  missed  the  Entrance  of  the  Eiver  & were 
obliged  to  go  about  a mile  pasc  to  land. 

“Monday,  May  10th.  1790 — slept  at  Point  Sables  with  the 
Cannes  and  began  to  hull  corn  and  bake  Bread  & arrange 
everything  for  next  morning  left  the  cannots  at  Point  Sables 
& took  his  Purogue  bought  of  him  41  lb  Flour  and  baked  in 


171 


Bread  for  125  & 29  lb  i)()rk  at  2-S,  tlie  whole  arnoiinliri^-  to  L 5, 
10,  8 paid  him  with  15  yds.  4-4-  cotton — 

^^Tnesdai/  May  lltli  1790 — Engaged  5 Indians  to  lielf)  ns 
over  the  Carrying  places  wit.li  tlie  periogue  and  [laid  them  2 
liandfulls  of  powder  each — Diiarrier  this  morning  very  saucy 
& abuseful  about  getting  Salt  I promised  to  recjuite  him  for  it 
— a Showery  Day  & Wind  at  West  and  Carrying  place  about 
4 a Mile  got  over  nearly  at  Mid  Day — from  thence  passed  in 
the  Run  & 'small  League  to  the  River  deplain  & course  turning 
north  South  West  a very  wet  afternoon  & heavy  thunder  ar- 
rived at  the  River  deplain  said  to  be  15  miles  & encamped. 

Wednesday,  May  12,  1790. — Sett  off  from  the  River 
deplain  which  runs  from  the  North  our  Course  down  the  Illi- 
nois River  South  West  passed  La  Croix  & after  Les  Arbes 

& a pass'  that  goes  in  a small  Lake  to  the  South  East  & by  this 
pass  its  said  to  be  3 Leagues  to  Little  Kenomuk  on  the  Lake 
this  about  11  o ’clock — passed  the  petite  & Grand  Tosil  & after- 
wards the  long  Rapid  & came  to  the  Village  of  Mount  Juilliette 
the  Course  South  West  a high  hill  at  West  resumbling  Fort 
Lernoult  at  Detroit  passed  afterwards  the  Lake  following  & 
camped — Here  Morras  informed  me  not  to  be  surprised  that 
there  was  so  much  Danger  he  would  not  return  with  me^ — Lam- 
orand  said  he  was  to  make  the  Voyage  with  him  & if  he  did  not 
return  he  would  not — 

''Thursday,  May  13,  1790 — finding  the  Goods  not  dry 
enough  and  very  warm  weather  coming  on  remain’d  to  dry 
them  better  in  the  Afternoon  threatened  Rain  we  were  obliged 
to  take  them  in — 

"Friday,  May  Idtli,  1790  remained  finished  drying  the 
Goods  and  pack’d  up — Belhumour  a Frenchman  settled  among, 
the  Indians  stop’d  to  pass  the  Villiage  at  the  Forks  with  us 
near  night  a heavy  Thunder  Storm. 

"Saturday  May  15th  1790 — loaded  & set  off  passed  the 
Villiage  at  the  Forks  the  Chief  & Villiage  in  feast  & good  hu- 
mour gave  him  a little  Tobacco  & powder  & he  said  he  should 
be  ready  to  assist  me  bought  5 sa(*s  of  Corn  for  4 shirts  & 
powder  & paid  Belhumour  with  powder  he  was  contented  but 
beg’d  2 white  shirts  on  Credit  ’till  my  Return  which  I gave 
him,  he  lent  me  his  dog  & a Tea  Kettle  & gave  me  Nine  Eggs  & 
a Leg  of  Venison — passed  the  Entrance  of  the  River  Theakekie 
about  mid  day  & from  here  arrived  at  the  rapid  of  Demi  Charge 

or  Rapid  of  M 10  Ijeagues  from  Theakakie 

carried  over  a part  & passed  the  periogue  camiied  at  the  Bot- 
tom Elegant  Land  with  plum  Tree  Oak  Ilickor^^  &c.  small  Sides 
high  Banks.” 

(The  original  was  produced  in  court  and  proved  to  be  in  the 
handwriting  of  Howard  by  Prof.  Alvord  of  the  University  of  Illi- 


171' 


iiois,  who  foiirid  tlio  record  of  lleward's  original  power  of  at- 
torney transcribed  in  the  court  records  of  Cahokia  in  English  in 
his  own  hand,  because,  as  the  record  states,  Ileward  was  the  only 
luan  there  who  could  write  in  English.)  (Abst.,  p.  743.) 

1790. — Governor  St.  Clair  (for  wliorn  St.  Clair  County,  Illinois, 
is  named).  Governor  of  the  Northwest  Territory,  reporting 
to  President  Washington,  wrote : 

‘^The  commerce  of  the  Illinois  country  is  of  some  importance 
in  itself,  l)ut  more  so  w^hen  considered  as  connected  with  the 
Spanish  side  of  the  Mississippi.  The  villages  on  that  side  of 
the  river  having  been  originally  settled  by  the  French,  and 
under  the  same  government  as  that  part  which  is  now  in  the 
possession  of  the  United  States,  the  connection  between  them 
is  still  more  intimate,  and  favors  a commercial  intercourse 
which,  though  illicit,  might  be  carried  on  by  the  citizens  of 
America  wuthout  risk.  It  is  carried  on  at  present  without  risk, 
but  is,  unfortunately,  almost  entirely  in  the  hands  of  the  Brit- 
ish. Even  much  the  greatest  part  of  the  merchandise  for  the 
trade  of  the  Missouri  Elver  is  brought  from  Michlimackinac  by 
that  of  the  Illinois,  partly  by  the  Spanish  subjects  themselves, 
and  partly  by  British  traders.  The  manner  is  this : The  Span- 
ish subjects  either  introduce  them  at  once,  in  consequence  of  a 
secret  connection  with  their  commandants,  or  they  are  brought 
down  to  Cahokia  and  landed  there,  and  afterwards  carried 
over  to  St.  Louis,  as  opportunities  can  be  found.  What  is 
brought  by  the  British  traders,  the  Spanish  subjects  purchase 
and  pay  for  on  the  American  side,  taking  all  the  risk  that  at- 
tends the  introducing  them  into  their  own  country  upon  them- 
selves: The  furs  in  which  these  goods  are  generally  paid  for 
(deer  skins  answering  better  than  furs  at  the  New  Orleans 
market),  are  carried  to  Canada  by  the  same  communication; 
that  is  to  say,  up  the  Illinois  Elver,  up  the  Chicago,  and  there 
by  a small  portage  into  Lake  Michigan,  and  along  that  lake  to 
Michilimackinac ; or  from  the  Chicago  up  the  river  Au  Plain, 
and  by  a portage  into  the  same  lake. 

^ ^ In  the  'Spring  of  the  year  the  waters  of  the  Michigan  and 
the  Chicago  rise  each  to  such  a height  that  the  intermediate 
space  is  entirely  overflowed,  and  is  passable  by  the  vessels  in 
use  there,  which  are  bark  canoes,  but  which  carry  a very  con- 
siderable burden  and  are  navigated  by  three  or  by  five  per- 
sons.” 

From  the  St.  Clair  Papers,  Volume  II,  p.  174  (et  seq.) 

1793— 

1797. — Imlay’s  Topographical  Description  of  North  America.  (Dub- 
lin, 1792-3;  reprinted  New  York,  1793;  reprinted  by  Debrett, 
London,  1793;  3d  edition,  London,  1797.) 


17:^ 


Inilay’s  letter  No.  5 (3  Kd.,  p.  71-2)  states  tlie  following: 

“ I have  inentioned  that  it  is  about  220  from  th(‘  month  of  the 
Oliio  up  to  the  Mississippi  to  the  mouth  of  th(‘  Missouri  and 
about  20  from  thence  to  Illinois,  w'hicli  is  naviga})le  for  hat- 
teaux  to  its  source.  From  thence  there  is  a })ortage  only  of  2 
miles  to  Cliickago,  which  is  also  navigable  for  batteaux  to  its 
entrance  into  Lake  Michigan,  which  is  a distance  of  Ifi  miles. 
This  lake  affords  communication  with  the  Eiver  St.  Lawrence 
through  Lake  Erie,  passing  Niagara  by  a ])ortage  of  8 miles. 
The  lakes  Erie  and  Michigan  are  navigable  for  vessels  drawl- 
ing 6 and  7 feet  water.  This  is  one  of  the  routes  by  which  the 
exchange  of  commodities  between  the  northern  and  southern 
parts  of  this  empire  will  be  facilitated.’^  (Abst.,  p.  727.) 

1795. — Treaty  of  Greenville  (a  town  in  the  Northw^est  Territory, 
near  the  line  between  Ohio  and  Indiana),  Dec.  9,  1795. 

‘‘Treaty  of  Peace  between  the  United  States  of  America  and 
the  tribes  of  Indians  called  the  Wyandots,  Delawares,  Shaw - 
anese,  Ottawas,  Chippewas,  Patfawatamies,  Miamies^  Eel  Bir- 

ers,  Weas,  Kickapoos,  Piankeskan's  and  Kaskaskias. 
*********** 

^‘The  said  Indian  tribes,  do  also  cede  to  the  United  States 

the  following  pieces  of  land,  to-wnt : 
*********** 

“14.  One  piece  of  land  six  miles  scpiare,  at  the  mouth  of 
(hhcago  Eiver,  emptying  into  the  south w^est  end  of  Lake  Michi- 
gan, wdiere  a fort  formerly  stood.  15.  One  piece  tw^elve  miles 
sciuare,  at  or  near  the  mouth  of  the  Illinois  Eiver,  emptying 
into  the  Mississippi,  lb.  One  piece  six  miles  square,  at  the 
old  Peorias  fort  and  village,  near  the  south  end  of  the  Illinois 
lake  on  said  Illinois  Eiver. 

*********** 

‘L\nd  the  said  Indian  tribes  w^ill  allow"  to  the  people  of  the 
United  States  a free  passage  I)y  land  and  l)y  w"ater,  as  one  and 
the  other  shall  be  found  convenient,  through  their  country 
along  the  chain  of  posts  herein])efore  mentioned.  Again,  from 
the  mouth  of  the  Chicago,  to  the  comynencement  of  the  portage, 
between  that  river  and  the  Illinois,  and  down  the  Illinois  Biver 
to  the  Mississippi ; also  from  Fort  Wayne,  along  the  ])ortage 
aforesaid,  which  leads  to  the  Wabash  and  then  dowm  the  Wa- 
bash to  the  Ohio.  And  the  said  Indian  tribes  will,  also,  allow 
to  the  people  of  the  United  States,  the  free  use  of  the  harbors 
and  mouths  of  rivers,  along  the  lakes  adjoining  the  Indian 
lands,  for  sheltering  vessels  and  boats,  and  liberty  to  laud 

their  cargoes  where  necessary  for  their  safety. 

*********** 

(Signed  by  certain  chiefs  and  warriors  of  the  tribes  enumer- 
ated in  the  title.) 

American  State  Papers,  Class  3,  Indian  Affairs,  Vol  1. 

(Abst.,  pp.  760-762.) 


174 


1796. — A('t  ()[  May  18,  (‘iititlod,  Act  providing  for  the  sale  of 
the  lands  ot  the  United  States  in  .the  territory  northwest  of 
the  River  Ohio  and  above  the  month  of  the  Kentucky  EiverA^ 

^‘Sec.  9. — * * * All  navigable  rivers  within  the  territory 

to  he  disposed  of  by  virtue  of  this  Act  shall  be  deemed  to  be 
and  remain  public  highways^’ 

(1  U.  S.  Stat.  at  L.,  Chap.  29,  p.  468.) 

1800. — Act  of  May  7.  The  Indiana  territory,  including  Illinois,  was 
separated  from  the  remaining  territory  northwest  of  the  Ohio. 

(2  U.  S.  Stat.  at  L.,  Chap.  41,  p.  58.) 

1801-1811.— Dhe  Navigator’’  was  published  (approximately  one 
edition  a year).  It  is  entitled  ^‘The  Navigator  containing  di- 
rections for  navigating  the  Ohio  and  Mississippi  Rivers.”  It 
is  commonly  known  as  ^'Drake’s  Navigator,”  and  the  preface 
to  the  twelfth  edition,  dated  February,  1811,  describes  it  as 
‘‘being  the  eleventh  since  the  year  1801.” 

(Twelfth  Edition — ^Pittsburgh — Printed  and  published  by 
Cramer  & Spears.  Franklin  Head  Book  Store,  Wood 
street,  1824.) 

The  following  extract  which  relates  to  the  Illinois  and  Des 
Plaines  Rivers  called  in  this  extract  “The  Illinois”  is  found  on 
page  113,  as  follows : 

‘ ‘ The  following  are  the  principal  rivers  which  empty  into  the 
Mississippi  on  the  eastern  side,  from  below  the  Falls  of  St. 
Anthony,  with  distances  from  river  to  river,  and  how  far  they 
are  navigable,  viz. : 

Illinois,  160,  navigable  about  450  and  is  400  yards  wide  at 

its  mouth,  between  a branch  of  the  Illinois  and  Chicago  River, 
which  empties  into  Lake  Michigan,  there  is  a portage  of  two 
miles.  From  this  portage  to  the  lake  is  a batteaux  navigation 
of  16  miles.  By  this  happy  connection  of  waters  there  is  a 
complete  communication  from  New  York  to  New  Orleans 
through  that  northern  and  extensive  route  having  only  about 
28  miles  of  land  carriage  in  the  distance  of  4,000  miles;  the 
greatest  stretch  of  inland  navigation  known  in  the  World. 

“The  route  from  New  York  is  by  the  Hudson  River  to  Al- 
bany; thence  by  land  to  Schenectady,  16  miles;  thence  up  the 
Mohawk  river  and  through  a canal  of  4 miles  into  lYood  Creek ; 
thence  into  Lake  Ontario ; thence  up  that  lake  and  the  Niagara 
River  to  Queenstown  7 miles  below  the  Falls  of  Niagara  ; thence 
ten  miles  land  carriage  around  said  falls  of  Chippeway ; thence 
up  the  river  into  Lake  Erie  and  through  that  lake  into 
Lake  St.  Claire,  thence  into  Lake  Huron,  through  Lake  Mi  chi- 


175 


gan  and  into  ilie  (.hieago  Iviver;  niontioiied  above;  tbcneo  down 
the  Illinois  and  Mississipy)!  Rivers.” 

1804. — Act  oi*  Congress,  Marcli  120.  ‘C\n  Aiti  making  i)rovision  for 
the  disposal  of  the  public  lands  in  tlie  Indiana  Territory  and 
for  otlier  purposes.  ’ ^ 

^‘Sec.  0. — * * * All  the  navigable  rivers,  creeks  and  wa 

ters  within  the  Indiana  Territory  shall  be  deemed  to  be  and  re- 
main public  highways.” 

1807. — August  7-8,  Robert  Fulton  made  the  first  trip  of  the  Cler- 
mont, from  New  York  to  Albany,  the  first  successful  bit  of 
steamboat  commerce.  The  boat  was  built  on  salt  water,  on  an 
ocean  model,  and  was  130  feet  long,  18  feet  wide,  7 feet  deep 
and  of  160  tons  burden. 

(15  Am.  Cyc.,  353.) 

1809. — Act  of  Congress,  February  3.  Created  the  Illinois  Terri- 
tory. 

‘‘And  the  inhabitants  thereof  shall  be  entitled  to  and  enjoy 
all  and  singular  the  rights,  privileges  and  advantages  granted 
and  secured  to  the  people  of  the  Territory  of  the  United  States, 
northwest  of  the  River  Ohio,  by  said  ordinance.” 

This  was  after  the  ordinance  of  1787  had  been  in  force  for  more 
than  20  years,  and,  while  it  changed  navigation,  it  did  not  change 
the  law  which  made  the  streams  that  were  navigable  by  previous 
methods,  forever  free  public  highivays. 

1816. — August  24.  Treaty  of  the  United  States  with  Ottawas,  Chip- 
pewas  and  Pottawatamie  Indians.  (Treaty  of  Black  Par- 
tridge). Secured  a cession  to  the  United  States  of  a tract  of 
land  10  miles  wide  on  each  side  of  the  Des  Plaines  and  Illinois 
from  Fox  River  to  Lake  Michigan  (the  tract  one-half  of  which  * 
afterwards,  under  the  selections  made  in  pursuance  of  the  Act 
of  Congress  of  1827,  became  canal  lands.) 

7 U.  S.  Statutes  at  Large  (Indian  Treaties),  pp.  146-7. 

The  foregoing  is  the  first  official  use  of  the  name  Dies  Plaines. 
Theretofore  the  term  “Illinois”  had  long  been  used  to  cover  the 
Des  Plaines  as  well  as  the  lower  river. 

1816-1817. — U.  S.  Survey  (Maj.  S.  JI.  Long) — 

“respecting  the  practicability  of  uuiting  by  a canal  the  waters 
of  the  Illinois  River  and  those  of  Lake  Michigan.” 

“The  River  Des  Planes  is  a small  stream  rising  in  the  low 
lands,  bordering  upon  the  west  side  of  Lake  Michigan,  and  has 


its  ^eiieraJ  (‘ourse  in  a soutli\vestei‘ly  direction.  Tlie  valley  of 
this  I'iver  has  an  average  width  of  about  one  mile,  and  is  ter- 
minated on  both  sides  by  regmar  l)anks  nearly  parallel  to  each 
other,  extending  along  tlie  river  about  thirty  miles  from  the 
head  of  the  Illinois,  in  ascending  this  river  also,  the  banks  or 
bluffs  gradually  decrease  in  height,  being,  as  before  mentioned, 
about  100  feet  high  at  the  mouth,  and  only  20  or  25  at  the  dis- 
tance of  50  miles  higher  up  the  river,  where,  instead  of  main- 
taining their  parallel  direction,  they  form  nearly  right  angles 
with  the  course  of  the  river,  that  on  the  right  taking  an  easterly 
and  that  on  the  left  a northwesterly  course ; but  being  gradually 
inflected  from  these  courses,  they  form  an  extensive  curve,  en- 
circling a large  tract  of  flat  prairie  in  no  part  elevated  more 
than  12  or  14  feet  above  the  common  level  of  the  water  in  this 
vicinity.  The  river  throughout  the  above  mentioned  distance, 
has  4 or  5 short  rapids  or  ripples  that  make  their  appearance 
only  in  times  of  low  water.  In  every  other  part  it  has  the  ap- 
l)earance  of  being  a chain  of  stagnant  pools  and  small  lakes, 
affording  a sufficient  depth  of  water  for  boats  of  moderate 
draught. 

‘‘In  the  flaf  prairie  above  mentioned  is  a small  lake  about  5 
miles  in  length  and  from  6 to  50  or  40  yards  in  width,  communi- 
cating both  with  the  River  Des  Planes  and  Chicago  River,  by 
means  of  a kind  of  canal  which  has  been  made  partly  by  the 
current  of  the  water  and  partly  by  the  French  and  Indians,  for 
the  purpose  of  getting  their  boats  across  in  that  direction,  in 
time  of  high  water.  The  distance  from  the  River  Des  Planes 
to  Chicago  River  by  this  water  course  is  about  9 miles ; through 
the  greater  part  of  which  there  is  more  or  less  water,  so  that 
the  portage  is  seldom  more  than  5 miles  in  the  driest  season ; 
but  in  a wet  season,  boats  pass  and  repass  with  facility  be- 
tween the  two  rivers.’’ 

**********•«= 


“proposed  canals  and  roads. 

A Canal  uniting  the  waters  of  the  Illinois  with  those  of 
Lake  Michigan  may  be  considered  the  first  in  importance  of  any 
in  this  quarter  of  the  country,  and,  at  the  same  time,  the  con- 
struction of  it  would  be  attended  with  very  little  expense,  com- 
pared with  the  magnitude  of  the  object.  The  water  course, 
which  is  already  opened  between  the  River  Des  Plaines  and 
Chicago  River,  needs  but  little  more  excavation  to  render  it 
sufficiently  capacious  for  all  the  purposes  of  a canal.  It  may 
be  supplied  with  water  at  all  times  of  the  year,  by  constructing 
a dam  of  moderate  height  across  the  Des  Plaines,  which  would 
give  the  water  of  that  river  a sufficient  elevation  to  supply  a 
canal  extending  from  one  river  to  the  other.  It  would  be  nec- 
essary. also,  to  construct  locks  at  the  extremities  of  the  canal. 


177 


that  eoinauinicating'  witli  Chicago  River,  h(‘ing  ('aleulatcnl  to  ele 
vate  about  six  feet  and  that  communicating  witli  i)es  Plaines 
river  about  four  feet. 

‘^To  render  the  Des  Plaines  and  Illinois  navigable  for  small 
boats  and  flats  requiring  but  a small  draught  of  water,  nothing 
more  is  necessary  than  the  construction  of  sluices,  in  a few 
places  where  there  are  ripples  of  a sufficient  width  to  admit 
the  boats  to  pass  through  them.  This  may  be  effected  by 
clearing  away  the  loose  stones  from  the  bottom  and  forming 
banks  riveted  with  stone  two  or  three  feet  high,  on  each  side  of 
the  sluice.  Thus  a water  communication  between  the  Illinois 
and  Lake  Michigan  may  be  kept  open  at  all  times  sufficient  to 
answer  all  the  purposes  for  which  a canal  will  be  wanted  for 
many  years  to  come.  A canal  uniting  the  St.  Joseph  of  the 
lake  with  the  Illinois  by  way  of  the  Kankakee  may  be  con- 
structed also  in  a similar  manner,  and  with  great  facility,  ex- 
cept that  the  distance  by  this  route  is  considerably  greater.  ’ ’ 


EXTRACT  FROM  EXECUTIVE  DOCUMENT  NO.  17,  STATE  PAPERS,  IST  SES- 
SION, 16th  CONGRESS. 

Extract  from  a report  of  Stephen  H.  Long  to  George  Graham, 
Esq.,  Acting  Secretary  of  AVar,  dated  AVashington,  Alarch  4th, 
1817: 

a*  * * where  instead  of  maintaining  their  parallel  direc- 

tion, they  form  nearly  right  angles  with  the  course  of  the  river, 
that  on,  the  right  taking  an  easterly  and  that  on  the  left  a north- 
westerly course;  but,  being  gradually  inflected  from  these 
courses,  they  form  an  extensive  curve,  encircling  a large  tract 
of  flat  prairie,  in  no  part  elevated  more  than  12  or  14  feet 
above  the  common  level  of  the  water  iii  this  vicinity.  The  river 
throughout  the  above  mentioned  distance  has  4 or  5 short 
rapids  or  ripples  that  make  their  appearance  only  in  times  of 
low  water.  In  every  other  part,  it  has  the  appearance  of  being 
a chain  of  stagnant  pools  and  small  lakes,  affording  a sufficient 

depth  of  water  for  boats  of  moderate  draught.  ’ ’ 
*********** 

Continuing  on  page  6 : 

^Mn  the  flat  prairie,  above  mentioned,  is  a small  lake,  about  5 
miles  in  length,  and  from  6 to  30  or  40  yards  in  width,  com- 
municating both  with  the  River  Des  Plaines  and  Chicago  River, 
by  means  of  a kind  of  canal,  which  has  been  made  partly  by  the 
current  of  the  water  and  partly  by  the  French  and  Indians,  for 
the  purpose  of  getting  their  boats  across  in  that  direction, 
in  time  of  high  water.  The  distance  from  the  River  Des 
Plaines  to  Chicago  River,  by  this  water  course,  is  about  9 


178 


miles;  through  the  gi'eater  part  of  which  there  is  more  or  less 
watei-,  so  that  the  portage  is  seldom  more  than  miles  in  the 
driest  season,  hut  in  a wet  season  boats  pass  and  repass  with 

facility  between  the  two  I’ivei's.” 

* ‘ * * * * * * * * * * 

Also  on  page  7 : 

^A’hoposed  canals  and  roads. 

A canal  uniting  the  waters  of  the  Illinois  witli  those  of 
Lake  Mi(‘higan  may  l)e  considered  the  first  in  importance  of 
any  in  this  quarter  of  the  country,  and  at  the  same  time  the 
construction  of  it  would  be  attended  with  very  little  expense, 
conijiared  with  the  magnitude  of  the  object.  The  water  course 
which  is  already  opened  l)etween  the  Kiver  Des  Pfaines  and 
Chicago  River  needs  but  little  more  excavation  to  render  it 
sufficiently  capacious  for  all  the  purposes  of  a canal.  * * 

Also  on  page  7 : 

‘‘To  render  the  Des  Plaines  and  Illinois  navigable  for  small 
boats  and  flats  requiring  but  a small  draft  of  water,  nothing 
more  is  necessary  than  the  construction  of  sluices,  in  a few 
places  where  there  are  ripples  of  a sufficient  width  to  admit 
the  boats  to  pass  through  them.  This  may  be  effected  by  clear- 
ing away  the  loose  stones  from  the  bottom  and  forming  banks 
riveted  with  stones  two  or  three  feet  high,  on  each  side  of  the 
sluice.  Then,  a water  communication  between  the  Illinois  and 
Lake  Michigan  may  be  kept  open  at  all  times  sufficient  to  am 
swer  all  the  purposes  for  which  a canal  will  be  wanted,  for 
many  years  to  coine.’^ 

(Page  8,  Report  of  Graham  & Phillips.) 

“Kaskasia,  April  4th,  1819. 

“Sir : In  addition  to  the  notes  of  Mr.  Sullivan,  the  surveyor, 
which  describes  the  face  of  the  country  over  which  the  lines 
were  run,  we  beg  leave  to  suggest  some  views  which  occurred 
to  us  on  the  subject  of  communications  between  the  River 
Illinois  and  the  Michigan  Lake. 

“By  reference  to  the  map  herewith  forwarded,  it  will  be 
seen  that  the  little  River  Plein,  coming  from  the  northwest, 
aproaches  within  ten  miles  and  a quarter  of  Lake  ^Michigan, 
and  then  bending  to  the  southwest  unites  with  the  TheaJdki, 
at  the  distance  of  about  fifty  miles,  and  forms  the  river  IHi- 
iwis. 

“The  country  between  the  lake  and  the  Plein,  at  this  point 
of  approach,  is  a prairie  (natural  meadow)  without  trees, 
covered  with  grass,  and,  to  the  eye,  a perfect  level.  From  the 
bank  of  the  Plein,  standing  on  the  ground,  the  trees  are  dis- 
tinctly seen,  with  the  naked  eye,  at  Fort  Dearborn,  on  the 
shore  of  the  lake;  from  Fort  Dearl)orn  they  are,  in  like  man- 


179 


nor,  seen  on  tlio  hank  of  tlio  Plein.  Standing  on  any  int(‘rnio- 
diate  point,  between  the  lake  and  the  river,  and  the  judgment 
is  at  a loss  to  say  to  which  side  the  ground  declines,  and 
whether  the  level  of  the  Plcin  or  the  lake  is  the  highest.  It 
was,  however,  determined,  from  certain  data,  that  the  level  of 
the  river  w<as  two  feet  or  thereabouts  above  the  level  of  the 
lake.  From  this  view,  it  would  seem  that  the  cutting  of  a 
canal,  in  this  place,  between  the  Plein  and  the  lake,  would  be  a 
work  of  neither  skill,  difficulty  or  expense.  Small,  however,  as 
the  labor  would  be,  under  this  view,  it  is  still  diminished  upon 
a close  examination  and  by  finding  that  an  arm  of  the  lake 
called  Chicago  puts  out  in  the  direction  of  the  Plein,  and  that 
an  arm  of  the  Plein,  also  called  Chicago,  puts  out  in  the  direc- 
tion of  the  lake.  They  approach  within  two  miles  of  each 
other;  so  that  in  common  ivater,  there  is  only  dry  ground  to 
that  extent  between  them.  The  character  of  these  two  arms  is 
essentially  different ; that  of  the  lake  being  about  sixty  feet 
wide,  and  from  ten  to  forty  feet  deep;  that  of  the  river  being 
in  high  water  from  four  to  six  feet  deep,  and  in  places  a mile 
wide,  and,  in  low  water,  either  dry  or  reduced  to  a gutter.  Be- 
tween the  heads  of  these  two  arms  is  also  a gutter,  which  is  dry 
in  the  dry  seasons  of  summer  and  fall,  and  full  of  water  in  the 
spring,  and,  when  thus  filled  tviih  water,  the  boats,  of  six  or 
eight  tons,  engaged  in  the  MacMna^v  and  Mississippi  trade, 
run  through,  hackivards  and  forwards,  so  as  to  (page  9)  make 
no  portage  between  Mackinaw  and  the  Mississippi.  This  gut- 
ter, judging  from  the  appearance  of  others  now  forming,  was, 
at  first,  a path  worn  out  by  the  feet  of  those  who  carried 
things  across  the  portage  and  afterwards  deepened  by  the  at- 
trition of  the  waters,  until  formed  into  a little  canal.  The 
wind,  alone,  gives  the  water  a current  in  this  little  canal,  and 
its  direction  depends  upon  the  course  of  the  wind.  Objects 
have  been  seen  to  float  out  of  it,  from  the  same  point,  to  the 
river  and  to  the  lake. 

^‘It  is  incontestibly  true  that  an  east  wind  will  drive  the 
water  of  the  lake  through  this  gutter  into  the  Plein  and  that 
water  from  Lake  Michigan  lias  been  .discharged,  by  this  out- 
let, into  the  Mississippi,  and  thence  into  the  Gulf  of  Mexico. 
It  is  eciually  incontestible  that  the  waters  of  the  Plein  have 
been  driven  by  the  same  channel  into  the  lake;  and  these  phe- 
nomena may  now  be  witnesses,  at  any  time,  when  the  waters 
are  high  and  the  wind  blows  hard.  It  follows,  therefore,  that 
to  finish  the  canal  begun  by  nature,  in  this  place,  would  re- 
quire, as  we  have  already  said,  but  little  of  skill,  time,  or  ex- 
pense. On  opening  the  canal,  however,  two  difficulties  would 
be  experienced. 

‘dst.  The  Plein  would  be  found  to  be  above  the  level  of  the 


180 


canal ; its  water,  of  course,  would  be  diverted  from  its  nat- 
ural channel,  and  pass  by  the  canal  into  the  lake. 

‘^2nd.  Supposing  that  evil  remedied  by  a lock  to  lift  vessels 
into  the  PleAii,  yet  the  Plein  during  half  the  year,  does  not 
contain  water  enough  to  float  a boat  and  so  could  not  be  use- 
ful as  a national  highway. 

^‘To  remedy  this  defect  of  water  in  the  PleAn,  two  projects 
suggest  themselves.  1st.  To  sink  the  bed  of  the  Plein  below 
the  level  of  the  canal,  and  thus  increase  the  depth  of  the  Plein 
as  well  by  feeding  it  out  of  the  lake  as  by  collecting  its  water 
into  a narrower  channel.  2nd.  To  make  the  canal  unite  with 
the  Plein  lower  down  in  its  course.  A few  miles  lower  would 
be  sufficient  to  give  the  water  of  the  lake  a descent  into  the 
river,  as  the  Plein  has  a sensible  descent  in  this  place,  inso- 
much that  the  people  of  Chicago  call  it  ^The  Rapids,’  having 
no  other  word  to  distinguish  moving  water  from  that  which 
stands  still.  Of  the  Plein  below  its  point  of  approach  to  the  • 
lake,  we  would  remark  that  it  has  hardly  the  attributes  of  a 
river,  being  in  most  places  without  current,  and  without  banks, 
lying  as  a sheet  of  water  in  the  prairie,  sometimes  a mile  wide, 
and  so  shallow  that  the  tall  grass  appears  almost  everywhere 
above  its  surface.  * * 

(Continuing  on  page  10)  : 

^^To  conclude,  the  route  by  the  Chicago,  as  followed  by  the 
French  since  the  discovery  of  the  Illinois,  presents  at  one  sea- 
son of  the  year  an  uninterrupted  water  communication  for 
boats  of  six  or  eight  tons  burthen,  between  the  Mississippi  and 
the  Michigan  Lake ; at  another  season,  a portage  of  two  miles ; 
at  another,  a portage  of  seven  miles,  from  the  bend  of  the 
Plein  to  the  arm  of  the  lake;  at  another,  a portage  of  fifty 
miles,  from  the  month  of  the  Plein  to  the  lake;  over  which  ' 
there  is  a well  beaten  wagon  road,  and  boats  and  their  loads 
are  hauled  by  oxen  and  vehicles  kept  for  that  purpose  by  the 
French  settlers  at  the  Chicago.” 

1818. — April  18.  ‘‘An  Act  of  Congress  to  enable  the  people  of 
Illinois  to  form  a Constitution  and  State  Government  and  for 
the  admission  of  such  state  into  the  Union,  on  an  equal  footing 
with  the  original  states.  * * * 

“Sec.  4.  And  he  it  further  enacted,  That  the  members  of 
the  convention,  thus  dul}”  elected,  be  and  they  are  hereby  au- 
thorized to  meet  at  the  seat  of  government  of  the  said  terri- 
tory, on  the  first  Monday  of  the  month  of  August  next,  which 
convention,  when  met,  shall  first  determine,  by  a majority  of 
the  whole  number  elected,  whether  it  be  or  be  not  expedient  at 
that  time  to  form  a Constitution  and  State  Government  for  the 
people  within  the  said  territory,  and  if  it  be  expedient  the  con- 
vention shall  be  and  hereby  is  authorized  to  form  a const! tu- 


181 


tion  and  stnio  g-oveniuvoiit ; or,  if  it  bo  docvrnod  inoro  oxpodiorit, 
tlio  said  (‘oiivoiiiioii  shall  ])r()vido  l)y  Ordiiiarico  for  (hooting 
RepresentatLves  to  form  a Constitution!  or  frame  of  Govern- 
ment; which  said  Representatives  shall  he  chosen  in  such  man- 
ner, and  in  such  proportion,  and  shall  meet  at  such  time  and 
place  as  shall  be  prescribed  by  the  said  Ordinance  and  shall 
•then  form  for  the  people  of  said  territory  a Constitution  and 
State  Government : Provided,  that  the  same,  whenever 
formed,  shall  he  republican  and  not  repugnant  to  the  ordi- 
nance of  the  l?>th  of  July,  1787,  hehveen  the  original  States  of 
the  territory  northwest  of  the  River  Ohio,  excepting  so  much 
of  said  articles  as  relate  to  the  boundaries  of  the  States  therein 
to  be  formed.  And,  provided  also,  that  it  shall  appear  from 
the  enumeration  directed  to  be  made  by  the  Legislature  of  the 
said  territory,  that  there  are,  within  the  proposed  State,  not 
less  than  forty  thousand  inhabitants.” 

1818. — August  26,  1818.  Constitution  of  Illinois. 

(111.  L.,  1819,  App.,  p.  1.) 

(1  Starr  & Curtis,  2 Ed.,  p.  55.) 

‘‘The  people  of  the  Illinois  Territory,  having  the  right  of 
admission  into  the  general  government  as  a member  of  the 
Union,  consistent  with  the  Constitution  of  the  United  States, 
the  Ordinance  of  Congress  of  1787,  and  the  laiv  of  Congress 
approved  April  18,  1818,  entitled  ‘An  Act  to  enable  the  people 
of  the  Illinois  Territory  to  form  a Constitution  and  State 
Government,  and  for  the  admission  of  'Such  State  into  the 
Union  on  an  equal  footing  with  the  original  States,  and  for 
other  purposes,’  in  order  to  establish  justice,  promote  the  wel- 
fare and  secure  the  blessings  of  liberty  to  themselves  and  their 
posterity,  do  by  their  Representatives  in  convention,  ordain 
and  establish  the  following  Constitution  or  form  of  govern- 
ment, and  do  mutually  agree  with  each  other  to  form  them- 
selves into  a free  and  independent  State,  by  the  name  of  the 
State  of  Illinois.” 

1818. — Uec.  8.  Resolution  of  Congress,  entitled: 

RESOnUTION 

DECLARING  THE  ADMISSION  OF  THE  STATE  OF  ILLINOIS  INTO  THE  UNION. 
DECEMBER  3,  1818. 

Resolved,  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America,  in  Congress  assembled.  That  where- 
as, in  pursuance  of  an  Act  of  Congress,  passed  on  the  eight- 
eenth day  of  April,  one  thousand  eight  hundred  and  eighteen, 
entitled  ‘An  Act  to  enable  the  people  of  the  Illinois  territory 
to  form  a Constitution  and  State  Government  and  for  the  ad- 
mission of  such  state  into  the  Union,  on  an  equal  footing  with 


tlie  original  States/  tlie  people  of  said  territory  did,  on  the 
twenty-sixth  day  of  August,  in  the  present  year,  by  a conven- 
tion called  for ’that  purpose,  form  for  themselves  a Constitu- 
tion and  State  Government,  which  Constitution  and  State  Gov- 
ernment so  formed  is  republican  and  in  conformity  to  the  prin- 
ciples of  the  articles  of  compact  between  the  origmal  states 
and  the  people  and  the  states  in  the  territory  northwest  of  the 
River  Ohio,  passed  on  the  thirteenth  day  of  duly,  one  thousand 
seven  hundred  and,  eighty-seven. 

‘^Resolved,  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America,  in  Congress  assembled.  That  the 
State  of  Illinois  shall  be  one,  and'  is  hereby  declared  to  be  one 
of  the  United  States  of  America,  and  admitted  into  the  Union 
on  an  equal  footing  with  the  original  states,  in  all  respects 
vdiatever.” 

(3  U.  S.  St.  at  L.,  j).  536.) 


1819. — K.  Dana’s  ‘‘Bounty  Lands”  and  “ Hoads  and  Houtes  by 
Land  and  Water,”  published  at  Cincinnati  by  Looker,  Keynolds 
Company,  printers : 

Page  49: 

“DESCRIPTION 
of  the  Principal 
ROADS  AND  ROUTES 
By  Land  and  W ater. 

Through  the  Territory  of  the  United  States; 

Extending  from  the 

Province  of  New -Brunswick,  in  Nova  Scotia, 

To  the  Pacific  Ocean; 

Embracing  the  Main  Interior  and  Cross  Roads  between  the 
Towns  and  Places  of  Most  Note. 


By  E.  DANA.*  (See  foot  notes.) 


CINCINNATI : 

Looker,  Reynolds  & Co.,  Printers. 


1819.” 

Page  51: 

“The  author  has  for  more  than  twenty-eight  years,  trav- 
ersed, by  the  principal  routes  and  roads,  over  almost  every 
section  of  the  United  States,  and  the  southern  parts  of  the 
two  Canadas,  bordering  on  the  extensive  range  of  the  Great 
Lakes,  and  constantly  kept  an  itinerary,  where  he  has  noted, 
from  day  to  day,  the  routes  and  distances  from  place  to 
place,  by  land  and  water;  correcting:  his  own  es'timates  bv 


18:^ 


that  of  oil'.or  (‘X|)(‘ri(‘ri(‘(‘(l,  men,  siicli  as  liiinl(‘is, 

Tiidiaii  agents,  iiun-ehaiits,  ii-avelUn-s  and  ()fti(‘(‘rs  of  tin*  arany, 
as  well  as  by  the  routes  and  roads  dellrnaitcHl  on  rjia})S,  and 
published  in  newspa])ers,  alinana(*s,  pamphlets,  voyag(‘s, 
itineraries,  statistical  or  geograi)bi('al  sketches.  Indeed  h(‘ 
has  resorted  to  every  expedient,  that  could  enlarge  or  ('oi*- 
rect  his  information  on  the  snl)ject,  except  actual  survey  and 
admeasurement. 

‘‘Having  at  length  matured  his  system,  by  arranging  and 
grouping  his  routes  into  wliat  he  deemed  the  most  natural  and 
geographical  order,  he  has  ventured  to  present  to  the  public 
the  result  of  his  labors,  containing  a description  of  two  hun- 
dred and  sixty  routes  and  roads ; some  by  land,  some  by  water, 
and  others  by  land  and  water,  among  which  are  included  sev- 
eral new  and  extensive  routes  never  before  published.  The 


*Peter  G.  Thompson’s  “Bibliography  of  the  State  of  Ohio”  (Cin- 
cinnati, 1880)  (not  introduced  below),  says  of  this  book: 

“Dana,  (E.).  Description  of  the  principal  Beads  and 
Boutes  by  Land  and  Water,  through  the  Territory  of  the 
LTnited  States;  extending  from  the  province  of  New  Bruns- 
wick in  Nova  Scotia  to  the  Pacific  Ocean;  Embracing  the 
main  Interior  and  Cross  Beads  between  the  Towns  and  Places 
of  Most  Note.  By  E.  ])ana. 

“Cincinnati:  Looker,  Beynolds  & C^o.,  Printers,  1819.” 

“Pages  97-99  give  the  Beads  in  the  State  of  Ohio  with  the 
Distances  from  Place  to  Place  along  them. 

“This  little  work,  which  is  scarce,  was  never  ])ublished  in 
a separate  form.  It  ai^peared  in  the  same  volume  with  a work 
entitled  ‘A  Description  of  the  Bounty  Lands  in  the  State  of 
Illinois,’  B}^  E.  Dana,  (hncinnati,  1819,  and  forms  ])p.  49-108 
of  the  said  work. 

“Priced,  Cin’ti,  1878,  hf.  nior.,  $8.50.” 

“Dana,  (E.).  Geographical  Sketches  of  the  Western 
Country;  designed  for  Emigrants  and  Settlers;  Being  the  re- 
sult of  extensive  researches  and  remarks.  To  which  is  added 
a summary  of  all  the  Most  rnteresting  Matters  on  the  Subjecd,, 
including  a Particnlar  Description  of  the  unsold  Public  Lands, 
collected  from  a variety  of  Authentic  Sources,  Also  a List  of 
the  Principal  Boads.  By  Pi.  Dana. 

“Cincinnati : Looker,  Beynolds  & Co.,  1819.” 

“The  work  contains  the  information  accpiired  by  the  author 
during  six  years  s})ent  in  the  West.  The  author  was  employed 
by  emigrants  desirous  of  removing  to  the  West  to  select  and 
])nrchase  for  them  sites  for  permanent  settlements.  Being  an 
uneducated  man,  the  work  was  pre|)ared  for  the  press  by 
Beuben  Kidder.  Pages  64-87  relate  to  Ohio.” 


184 


greater  part  of  all  these  routes  the  author  has  liimself  actually 
traveled  over,  noting  down,  as  he  passed,  the  distance  from 
place  to  place.  (Ahst.,  p.  716.) 


A l)ook  soinewliat  similar  to  Dana’s,  which  wms  not  produced 
at  the  hearing,  hut  discovered  afterwards,  is  the  following: 
1819.— Van  Zandt  (N.  B.). 

Full  Description  of*  the  Soil,  Water,  Timber  and  Prairies  of 
each  Lot  or  Quarter  Section  of  Military  Lands  between  the 
Mississippi  and  Illinois  Rivers,  8vo,  pp.  1313,  Washington, 
1818. 

On  page  92,  it  says : 

‘Bias  four  or  hve  short  rapids  * * * In  every  other 
part  has  appearance  of  a chain  of  stagnant  pools  * * * 
affording  a sufficient  depth  of  water  for  boats  of  moderate 
draught.  ’ ’ 

This  is  a quotation  from  Major  Long’s  Report.  It  is  significant 
of  the  immediate,  wide  diffusion  of  Long’s  Report  that  its  state- 
ments should  be  thus  reproduced  in  the  same  year  in  which  it  was 
published. 

1819. — In  Publication  No.  3 of  the  Illinois  Historical  Library  (puR- 
lished  by  authority  of  the  Board  of  Trustees  of  the  Illinois 
State  Historical  Library,  1903),  we  find,  since  the  trial  of  the 
case,  the  following: 

(p.  150.) 

^‘Travels  in  Illinois  in  1819.  Ferdinand  Ernst.  (The  fol- 
lowing pages  are  taken  from  a small  book  printed  in  the  Ger- 
man language  now  in  the  public  library  of  Belleville,  111.,  en- 
titled ‘Observations  Made  Upon  a Journey  through  the  In- 
terior of  the  United  States  of  North  America  in  the  Year  1819, 
by  Ferdinand  Ernst.’  It  was  published  at  Hildesheim,  in 
Hanover,  in  1823,  and  is  now  translated  into  English  in  1903 
for  the  first  time  in  this  country  for  the  Illinois  State  Histori- 
cal Library,  by  Prof.  E.  P.  Baker,  of  McKendree  College. 
The  extracts  here  presented  embody  the  observations  of  the 
traveler  in  the  State  of  Illinois  and  vicinity  of  St.  Louis,  Mis- 
souri. The  trustees  of  the  State  Historical  Library  contem- 
plate publishing  the  entire  works  in  the  near  future.  J.  F. 
S.)” 

(157)  Vandalia,  Sept.  10,  1819. 

(161)  ‘AVe  continued  our  journey  northward  and  soon  reached 

(162)  the  charming  banks  of  the  Onaquispasippi.  (Satz.)  Alas! 
this  river  was  likewise  too  high  to  be  crossed  on  horseback. 


185 


.Pages  57  and  58. 

‘‘noUTFi  NO.  II. liY^  WATFin 

Fi‘oiu  (Quebec* *,  Ijower  (biiiada,  to  New  Orleans,  by  Monti'eal, 
tlirong’li  Lakes  Ontario,  Lrie,  ilnron  and  Michigan;  tbence  up 
the  Chicago,  and  over  the  Portage  to  and  down  the  River 
Plein,  a liead  hrancli  of  the  Illinois,  and  down  the  latter  to  the 
^lississippi.”  (Ahst.,  p.  718.) 

The  author  then  gives  a list  of  the  various  stations  or  prin- 
cipal points  along  the  route  above  indicated,  with  the  dis- 
tances between,  up  to  Mackinaw^  straits,  which  he  shows  as  be- 


ing distant  from  Quebec,  by  this  route,  in  miles 1,164 

The  route  then  proceeds : 

‘LVeross  Lake  Michigan  to  Fort  Dearborn 270 

Up  Chicago  River,  Ind lOf 

Over  the  jDortage  up  the  Plein  to  the  junction  with 

the  Theakiki,  the  main  head  branches  of  the  Illinois . . 15f 


Total 1,460’’ 

Thence  down  the  Illinois  to  the'  Mississippi  and  down 


the  latter  river,  showing  numerous  intermediate 
points  with  the  distances  between,  to  New  Orleans, 
which  the  author  gives  as  distant  from  Quebec,  by  the 
route  indicated,  in  miles : ,3,151 


Here  a rather  passable  road  runs  northward  to  Fort  Clair 
(Clark)  on  Lake  Peoria.  The  soil  northward  on  (of)  the  San- 
gamon has  far  more  sand  in  it  than  in  the  remaining  part  of 
the  State;  and  the  only  thing  that  might  be  feared  would  be 
that,  on  that  account,  its  exceptional  fertility  in  time  might 
decrease.  But  this  point  of  time  is  certainly  very  far  off. 
The  Onaquispasippi  is  still  a more  beautiful  river  than  the 
Sangamon,  for  it  has  all  the  characteristics  of  the  latter  but 
in  a higher  degree.  It  is  likewise  navigable  for  medium  sized 
vessels. 

* * One  of  the  greatest  obstacles  that  may  retard 

the  rapid  population  of  this  district  is  the  scarcity  of  wood; 
yet  there  is  sufficient  timber  for  a moderate  population  and 
the  stock  of  forest  wall  soon  greatly  increase  now  that  the 
destructive  prairie  fires  will  be  stopped.  Likewise  the  rivers, 
Sangamon  and  Onaquispasi])pi  can  greatly  facilitate  the  im- 
portation of  this  article.  These  two  rivers  will  not  only  open 
up  a market  for  all  produce  in  the  direction  of  St.  Louis  and 
New  Orleans,  but  their  proximity  to  the  Illinois  River  will 
in  time  furnish  this  region  with  another  very  promising  pros- 


I^i^e  14: 

“SiK'li  lias  been  the  labol’ioiis  attention  of  the  author  in  ae- 
(inirin^  a niinnte  knowledge  of  the  Bounty  lands,  ])y  tracing  the 
lines  of  the  i)n})lic.  surveys,  llie  various  streams  and  water 
('ourses,  and  in  critically  exf)loring  almost  every  i)art  of  that 
region,  as  well  as  by  diligent  enquiry  of  public  surveyors,  and 
other  intelligent  men,  entitled  to  credit  from  their  known  ac- 
(luaintaiK'e  with  the  lands,  that  lie  feels  a strong  confidence  in 
the  correctness  of  his  descriptions.” 

1819.-  ()ct.  1().  Flint’s  “Ijetters  from  America.”  (From  Jef- 
fersonville, Ind.  Published,  Edinburgh,  1822.)  lieprinted 
h Thwaites  Early  Western  Travels,  }).  186.  (Ahst.;  ]).  942.) 

“At  a period  not  far  distant,  a communication  between  Lake 
Erie  and  Illinois  liiver  may  he  opened  through  the  River 
Plein,  which  empties  itself  into  the  lake.  Crafts  are  said  to 
have  already  passed  out  of  the  one  river  into  the  other.” 

( Footnote  in  that  woek)  : 

“A  canal  connecting  Illinois  River  with  Lake  Michigan  was 
first  suggested  liy  Joliet  in  1673,  when  he  and  Marquette  re- 
turned by  that  route  from  their  exploration  of  the  Mississippi 
River.  Such  a canal  was  included  in  Gallatin’s  system  of  in- 
ternal improvements,  jiroposed  in  1808.  President  Madison 
laid  the  matter  before  Congress  in  1814;  Calhoun,  as  secretary 
of  war,  again  called  attention  to  it  in  1819 ; and  for  twenty 
years  it  found  a place  in  the  governor’s  annual  message. 
Finally  (1836)  its  constinction  was  undertaken  by  the  State, 
aided  by  large  congressional  land  grants.  The  Illinois-Mich- 
igan  Canal,  extending  from  LaSalle  on  the  Illinois  River,  to 
Lake  Michigan  at  the  mouth  of  the  Chicago  River,  one  hundred 
miles  in  all,  was  completed  in  1848,  and  opened  with  much 
ceremony.  In  1882,  the  State  ceded  the  property  to  the  United 


pect  by  the  lakes  to  New  York  City  by  means  of  the  canal  now 
in  progress  connecting  that  city  and  Lake  Erie. 

“It  is  also  a very  easy  thing  to  unite  the  Illinois  with  Lake 
Michigan  by  a 12-mile  canal — even  now,  in  the  case  of  high 
water,  the  transit  there  is  now  made.  By  means  of  this  canal 
then  inland  navigation  wmuld  De  opened  up  from  New  York  to 
New  Orleans,  a distance  of  3,900  English  miles.  Such  an  in- 
ternal waterway  not  only  does  not  exist  at  the  present  time 
in  the  whole  world,  but  it  will  never  exist  anywhere  else.  Be- 
sides, this  State  enjoys  the  navigation  of  its  boundary  and  in- 
ternal rivei*s  amounting  to  3,094  miles,  and  all  are  placed  in 
communication  with  each  other  through  the  Mississippi.  In 
short,  I do  not  believe  any  one  State  in  all  America  is  so 
highly  favored  b\"  nature,  in  every  respect  as  the  State  of  Illi- 
nois.” 


1«7 


States,  ill  the  luvpi'  tliat  the  latter  woiild.eiilar^-e  it  for  a sliip 
eaiial.  P>iit  the  next  ste])  mis  taken  hy  the  Chiea^o  Sanitary- 
l)istri(*t,  wITkOi,  at  a eost  of  about  $^^5, 000, 000,  has  (*orn[)!etecl 
the  C'^liieago  Drainage  (kinal  for  the  lietter  disposal  of  the 
semige  of  (^hieago.  This  canal  was  opened  January  2,  1900, 
after  seven  years  spent  in  its  construction.  Flint’s  reference 
is  to  Des  Plaines  (Plein)  River.  Ed.” 

1821. — ‘‘(Jeorge  W.  Ogden’s  Letters  from  the  West,”  pnlilished. 
New  Bedford,  1823.  (Abst.,  p.  730.) 

‘^The  Illinois  is  the  largest  that  is  peculiar  to  this  State. 
This  is  a noble  river,  rising  near  the  south  end  of  Lake  Michi- 
gan. Its  head  branches  are  called  the  Plein,  and  Theakakee 
or  Kankakee.  The  Plein  is  navigable  within  two  miles  of  Chi- 
cago River  of  Lake  Michigan,  and  boats  are  said  to  have 
passed  loaded  from  one  to  the  other  at  high  water,  the  dis- 
tance between  them  being  a marsh  and  in  high  floods  it  is 
completely  inundated.”  Letter  No.  5,  p.  53. 

1821. — United  States  Surveyor  John  MMlls  surveyed  the  Govern- 
ment lands  bordering  the  Des  Plaines  River.  In  doing  so,  he 
.meandered  the  stream  and  made  this  note  thereof : 

^‘Meanders  doAvn  the  N.  side  of  Laplain  through  sect.  1,  T. 
38  N.,  R.  12  E.,  from  the  head  of  navigation.  * * * Oct. 

17,  1821.  John  Walls.” 

In  doing  this,  he  was  performing  an  official  duty  required  by  the 

work  of  the  United  States  Land  Survey. 

(The  Act  of  Congress  of  Mav  18,  1796,  required  that  every 
surveyor  shall  note  in  his  field  book  the  true  situation  of  all 
' mines,  salt  licks,  salt  springs  and  mill  seats  which  come  to  his 
knowledge  ; all  water  courses  over  which  the  line  he  rims  may 
pass;  and  also  the  cpiality  of  ihe  lands.”) 

1823. — Major  S.  H.  Long’s  ex])edition  to  the  source  of  St.  Peter’s 
River,  Narrative.  (Published  in  1825  by  W.  H.  Keating, 
* * * Geologist  and  Historiographer  to  the  Expedition.) 

Page  162  ‘Hn  the  afternoon  of  the  fifth  of  June,  we  reached  Fort 
Dearborn,  (Chicago).  * * * At  Fort  Dearborn  we  stop- 

ped for  a few  days  with  a view  to  examine  the  country  and 
make  further  {ireparations  for  the  journey  to  the  Missis- 
sippi.” 

***** 

I’age  163  ‘^Fort  Dearborn  is  situated  in  the  State  of  Illinois,  ou 
the  south  bank  and  near  to  the  mouth  of  Chicago  River;  the 
boundary  line  between  this  State  and  that  of  Indiana  strikes 
the  western  shore  of  Lake  Michigan  ten  miles  north  of  its 
southermost  extremity,  and  then  continues  along  the  shore  of 
the  lake  until  it  reaches  the  forty-second  and  a lialf  degree  of 


iiortli  latitude,  along  wliieli  it  extends  to  the  Mississippi.  The 
post  at  Chicago  was  abandoned  a few  months  after  the  party 
visited  it.  * * *’> 

Page  .1()5  * * The  ])ro visions  for  tlie  garrison  were  for  the 

most  part  conveyed  from  Mackinaw  in  a schooner,  and  some- 
times they  were  brought  from  St.  Louis,  a distance  of  three 
hundred  and  eighty-six  miles  up  the  Illinois  and  Des  Plaines 
Rivers/^ 

***** 

Page  167  ‘^Tlie  south  fork  of  Chicago  Kiver  takes  its  rise  about 
six  miles  from  the  fort  in  a- swamp  which  communicates  also 
with  the  Desplaines,  one  of  the  head  branches  of  the  Illinois. 
Having  been  informed  that  this  route  was  frequently  travelled 
by  traders,  and  that  it  had  been  used  by  one  of  the  officers  of 
the  garrison,  who  returned  with  provisions  from  St.  Louis  a 
few  days  before  our  arrival  at  the  fort,  we  determined  to 
ascend  the  Chicago  River  in  order  to  observe  this  interesting 
division  of  waters.  We  accordingly  left  the  fort  on  the  7th 
of  June  in  a boat,  which,  after  having  ascended  the  river  about 
four  miles,  we  exchanged  for  a narrow  pirogue^  that  drew  less 
water;  the  stream  we  were  ascending  was  very  narrow,  rapid 
and  crooked,  presenting  a great  fall ; it  continued  so  for  about 
three  miles  when  we  reached  a sort  of  swamp  designated  by 
the  Canadian  voyagers  under  the  name  of  la  petit  lac.  Our 
course  through  this  swamp,  which  extended  for  three  miles, 
was  very  much  impeded  by  the  high  grass,  weeds,  etc.,  through 


Pirogue:  A canoe  made  from  the  trunk  of  a tree  hollowed 
out.  Pirogues  are  sometimes  large,  decked,  rigged  with  sails,  and 
furnished  with  outriggers.  In  Louisiana  the  terms  pirogue  and 
canoe  are  used  inditferently.  See  periagua,  2. 

number  of  officers  with  three  hundred  and  twenty  soldiers, 
twenty  women  and  seventeen  children  left  New  Orleans  on  the 
27th  of  February,  under  the  command  of  an  officer  named  Loftus, 
in  ten  boats  and  two  pirogues.  Gayarre  Hist.  Louisiana,  II,  102. 

^‘The  earliest  improvement  upon  the  canoe  was  the  Pirogue,  an 
invention  of  the  whites.  Like  the  canoe  this  is  hewed  out  of  the 
solid  log;  the  difference  is  that  the  pirogue  has  greater  width  and 
capacity,  and  is  composed  of  several  pieces  of  timber — as  if  the 
canoe  was  sawed  in  two  equal  sections  and  a broad  flat  piece  of 
timber  inserted  in  the  middle,  so  as  to  give  greater  breadth  of 
beam  to  the  vessel.  This  was  probably  the  identical  process  by 
which  Furopeans,  unable  to  procure  planks  to  build  boats,  beiocan  in 
the  first  instance  to  enlarge  canoes  to  suit  their  purposes.  James 
Hall,  Notes  on  the  M^estern  States  (1888),  p.  218.” 

IV  Century  Dictionary,  p.  4509. 


189 


wliieli  our  pirog’iie  jmssed  witli  dirficulty.  Observing  tliat  our 
])rogress  tlirouJ>li  the  fen  was  very  slow,  and  the  day  l)eing 
eonsiderably  advanced,  we  landed  on  the  north  bank  and  con- 
tinued our  course  along  the  edge  of  the  swamp  for  about  three 
miles  until  we  reaclied  the  place  where  the  old  portage  road 
meets  the  current,  which  was  here  very  distinct  towards  the 
south.  We  were  delighted  at  beholding  for  the  first  time,  a 
feature  so  interesting  in  itself  but  which  we  had  afterwards 
an  opportunity  of  observing  frequently  on  the  route,  viz.,  the 
division  of  waters  starting  from  the  same  source  and 
running  in  two  different  directions,  so  as  to  become 
the  feeders  of  stream's  that  discharge  themselves  into 
the  ocean  at  immense  distances  apart.  Although  at  the  time 
we  visited  it,  there  was  scarcely  water  enough  to  permit  our 
pirogue^  to  pass,  we  could  not  doubt  that  in  the  spring  of  the 


Periagua:  1.  A canoe  made  from  the  trunk  of  a single 
tree  hollowed  out;  a dugout;  used  by  the  American  Indians. 

‘This  at  length  put  me  upon  thinking  whether  it  was  not  pos- 
sible for  me  to  make  myself  a canoe,  or  periagua,  such  as  the 
natives  of  those  climates  make.’  Defoe,  Robinson  Crusoe,  p.  lO-t. 
(Nares.) 

“2.  A vessel  made  by  sawing  a large  canoe  in  two  in  the  middle 
and  inserting  a plank  to  widen  it.  These  were  much  used  on  the 
coast  of  the  Carolinas  in  the  eighteenth  century,  and  even  made 
vo^mges  by  open  sea  to  Norfolk  carrying  40  to  80  barrels  of  pitch 
or  tar.  One  30  feet  long  and  5 feet  7 inches  wide  is  called  “a 
small  pettiaugua’’  in  the  Charleston  (S.  C.)  “Gazette,”  1744.  Such 
a boat  was  also  used  on  the  Mississi])pi  and  its  tributaries  where 
it  is  called  pirogue  and  periogne.  See  ])ii’ogue. 

“3.  A large  flat  bottomed  boat  Avithout  keel  but  with  lee4)oard 
decked  in  at  each  end  but  o]')en  in  the  middle,  propelled  by  oars 
or  by  sails  on  two  masts  Avhich  could  be  struck.  This  was  much 
used  formerly  in  navigating  shoal  Avaters  along  the  Avhole  Ameri- 
can coast,  and  sometimes  also  oh  the  Mississipj)!  and  its  affluents. 

“These  Periaguas  are  long  flat  bottome’d  boats  carrying  from 
20  to  35  tons.  They  have  a kind  of  forecastle  aud  a cabiu,  but  the 
rest  open  and  no  deck.  They  have  tAvo  masts  Avhich  they  can 
strike,  and  sails  like  schooners.  They  row  generally  with  two 
oars  only.  Francis  Moore,  A VoA^age  to  Georgia  begnn  in  1735,  p. 
49.” 

IV  Century  Dictionary,  ]).  4395. 

“In  the  account  of  LaSalle’s  last  voyage  by  his  brother.  Rev. 
John  Cavelier  (in  describing  their  journey  through  the  southwest), 
he  says: 

“ “They  gave  us  a periaugiia  in  which  Ave  put  20  men  and  the  8 
others  took  the  horses  by  land.’  ” 


190 


year  tlie  route  must  be  a vei*/  eligi])le  one.  Lieut.  Hopson, 
who  aecompanied  us  to  tlie  Des  Plaines,  told  us  tliat  he  had 
travelled  it  tvith  ease,  in  a boat  loaded  with  lead  and  flour. 
The  distanee  from  the  fort  to  the  intersection  of  the  Portage 
road  and  Des  Plaines  is  su])posed  to  l)e  about  twelve  or  thir- 
teen miles;  the  elevation  of  Pie  feeding  lake  above  Chicago 
iviver  was  estimated  at  five  or  six  feet;  and,  it  is  probable  that 
the  descent  to  tlie  Des  Plaines  is  less  considerable.  The  Port- 
age road  i'S  about  eleven  miles  long;  the  usual  distance  trav- 
elled by  land,  however,  seldom  exceeds  from  four  to  nine 
miles;  in  very  dry*  seasons  it  has  been  said  to  amount  to 
thirty  miles,  as  the  portage  then  extends  to  Mount  Juliet  near 
the  confluence  of  the  Kankakee.” 

1823. — In  a Gazetteer  of  the  States  of  Illinois  and  Missouri 

by  Lewis  C.  Beck,  A.  M., 

Published  At  Albany  in  1823 
by  Charles  E.  and  George  Webster. 

( )n  page  19  : 

‘‘The  fact  of  an  easy  and  during  some  seasons  an  uninter- 
rnpted  communication  between  Lake  Michigan  and  the  head 
waters  of  the  Illinois,  was  observed  by  the  French  at  the 
first  discovery  of  the  country;  and  on  this  account  they  imme- 
diately erected  trading  establishments  on  different  parts  of  the 
water.  ’ ’ 

***** 

“The  information  of  traders  and  voyageurs  was  such  as 
left  no  doubt  of  the  existence  of  a natural  canal  between  liake 

Michigan  and  the  Illinois  at  some  seasons  of  the  year.” 

* * • * * ^ * 

On  page  20: 

“A  few  years  since  the  country  south  and  west  of  Lake 
Michigan  was  explored  by  Messrs.  Phillips  and  Graham.  In 
a very  interesting  report  which  they  made  to  the  Secretary  of 
"War,  four  different  methods  of  forming  a communication  be- 
tween Lake  Michigan  and  the  Illinois  were  proposed,  viz. : 

‘ ‘ First,  by  uniting  a branch  of  Chicago  Kiver,  which  empties 
into  Lake  Michigan,  and  a branch  of  the  Des  Plaines,  which 
runs  a southeast  course,  and  approaches  within  ten  or  eleven 
miles  of  the  lakes,  and  then  Turning  to  the  southwest,  blends 
its  waters  with  the  Theakiki.  These  streams  approximate 
within  three  miles  of  each  other,  and  when  sw^elled  by  lieaTW" 
falls  of  rain,  actually  unite,  so  that  boats  of  S or  10  tons  bur- 
den  pass  and  repass  from  the  Lakes  to  the  Mississippi,  throiCgh 
this  natural  water.” 

***** 

“AVhat  is  called  Chicago  Eiver  or  creek  is  merely  an  arm 
of  the  lake,  extending  in  a southwesterly  direction  three  or 


191 


four  inilos,  and  fod  by  ouG  or  two  small  str’eams  coming  from 
the  north.  Hence  it  is  on,  a level  with  the  lake  but  at  some 
seasons  of  the  year  has  a gentle  cur  rent, _ owing  to  rains  and 
freshets.  On  tliis  stream  about  four  or  five  miles  from  the 
lake,  is  a trading  establishment,  and  here  the  portage  com- 
mences, which,  except  in  very  dry  seasons,  is  seldom  more 
tlian  d miles.  From  this  portage  to  the  Des  Plaines,  a dis- 
tance of  four  or  five  miles,  is  a swamp  wliich  is  generally  filled 
with  water  and  is  navigable.  The  height  of  the  Des  Plaines, 
at  the  point  where  the  swiamp  unites  mth  it,  is  calculated  at 
from  8 to  12  feet.  It  approaches  so  near  level  that  the  view 
from  the  swamp  to  the  lake  is  almost  uninterrupted.  This 
is  further  proved  by  the  (p.  21)  very  fact,  that  at  some  sea- 
sons there  is  a communication  between  the  (Chicago  and  the 
Des  Plaines  which  could  not  be  the  case  if  there  was  any 
high  land  intermediate. 

‘^The  Des  Plaines,  for  14  or  16  miles  below  its  junction  with 
the  swamp  above  mentioned,  has  scarcely  any  fall,  and  may 
be  said  to  be  on  a level.  Below  this  the  rapids  commence  and 
continne  for  a considerable  distance.  A short  distance  below 
the  commencement  of  the  rapids,  the  lake  and  the  Des  Plaines 
are  supposed  to  be  on  a level.  To  this  place,  therefore,  the 
canal  would  only  require  an  average  excavation  of  6 or  8 
feet.’’  (Abst.,  pp.  724-5.) 

1825. — Drown ’s  liecord  and  Historical  View  of  Peoria,'^'  p.  85,  (1st 
Ed.  1844,  Eevised  Ed.  1850),  states  the  following: 

^E\nother  of  our  old  ])ioneers  and  citizens,  who  is  still 
with  us,  Mr.  John  Hamlin,  of  Mass.  He  came  here  in  the 
spring  of  1821  from  Springfield,  in  company  with  dudge  Lock- 

*The  same  work  gives  the  following  statement  as  to  the  Ameri- 
can settlement  of  Peoria  : 

(81)  ‘Mn  the  spring  of  181,0  a few  hardy  sous  of  Kentucky,  Vir- 
ginia and  New  YoiE  living,  as  I have  lyefore  said,  on  Shoal  Oreek, 
resolved  on  an  enterprise  and  settlement  further  north,  if  found 
favoralde  to  their  wishes  in  this  delightful  ])art  of  our  State.  Ac- 
cordingly, seven  persons  united  themselves  into  a ])aud  for  this 
nndertaking  and  fitting  out  a keel  boat  destined  for  llie  Tllinois 
River  and  Port  Clark  at  the  foot  of  Peoria  Lake,  as  this  place  was 
then  called.  Those  persons  were  Aimer  Eads,  a Virginian  by 
birth;  J.  Horsey,  a New  Yorker;  Seth  Fulton  and  Josiah  Fulton, 
Virginians;  S.  Daugherty,  J.  Davis  and  T.  Russel,  Kentuckians. 
The  two  first  left  Shoal  Creek  wdth  two  pack  horses  and  the  five 
last  moved  with  the  boat  they  had  prepared  for  the  voyage  up 
the  Mississippi  and  Illinois  Rivers. 

^‘  Eads  and  Hersey  took  their  course  across  the  yyrairies,  cross- 
ing the  Illinois  River  at  or  near  where  Meredocia  now  stands,  and 


192 


Avood,  Judge  Latliain  (wlio  afterwards  became  a citizen  and 
proprietor  of  city  lots,  and  died  here  in  1826,  and  whom  I 
shall  have  occasion  hereafter  to  notice.),  Maj.  lies,  Gen.  J. 
Adams,  and  a Mr.  Winchester.  Maj.  Graham,  Indian  agent, 
of  St.  Louis,  came  here  about  that  time  with  a keel  boat  and 
])roceeded  up  to  LaSalle  prairie  (Rome),  where  he  paid  off 
the  Indians  their  annuity.  Some  of  them  returned  and  set- 
tled here  subsequently  and  became  useful  citizens  in  building 
up  our  city. 

^Mn  1832  an  Indian  agency  was  opened  and  established  here 
by  the  Government,  of  which  Judge  Latham  was  appointed 
agent,  in  iJace  of  Maj.  Graham-,  of  vSt.  Louis,  where  it  had 
heretofore  been  kept.  John  Hamlin,  Esq.,  was  a clerk  and 
kept  a branch  of  the  American  Fur  Company’s  store  in  this 
place  in  one  of  the  buildings  in  the  center  of  the  view  between 
Water  St.  and  the  lake — the  building  from  the  right  just 
below  the  Inn  sign-post.  In  this  store  were  kept  Indian  com- 
modities chiefly.  A portion,  however,  was  adapted  to  the 
wants  of  the  citizens  who,  at  this  time,  were  few.  Mr.  Ham- 
lin, while  thus  engaged  in  this  store,  exported  the  first  pro- 
duce to  Chicago  in  1825  in  keel  boats  as  far  as  the  mouth  of 
the  Kankakee  River,  and  from  there  in  Durham  boats  to  Chi- 
cago (having  build  a storehouse  at  the  former  place  to  store 
in  from  the  keel  boats  to  be  taken  by  the  Durham  boats  up 
the  Aux  Plain  river). 

^ ^ The  principal  articles  exported  were  pork,  beans  and  other 
provisions  for  the  use  of  the  Fur  Company.  There  were  but 
a very  few  families  till  within  a few  years  of  this  time,  within 
the  present  bounds  of  the  citv  till  about  1832.”  (Abst.,  p. 
679.) 


thence  on  this  side  of  the  river  through  the  country  to  this  place, 
where  they  arrived  with  their  pack-horses  and  baggage,  and  pitched 
their  tent  beside  the  remaining  pickets  of  the  old  forth  on  Satur- 
day, the  17th  day  of  April,  1819.  On  Monday,  the  19th,  Eads  left 
Hersey  in  charge  of  their  horses  at  their  camp  and  got  into  a 
canoe  with  a deserter  from  Ft.  Chicago  (vdiich  had  been  rebuilt  a 
year  or  two  before,  taking  the  name  of  Port  Dearborn),  who  came 
jjassing  down  the  river.  Eads  7net  the  boat  with  his  companions 
about  five  miles  below,  near  the  mouth  of  LaMar sh  Creek,  where 
he  joined  them  and  returned  to  the  old  fort,  where  all  landed  safe 
the  same  evening,  being  on  Monday,  the  19th  dav  of  April,  A.  D. 
1819. 

‘‘The  tents  they  had  pitched  beside  the  pickets  of  the  old  fort 
and  their  boat  served  them  for  a shelter  and  habitation  until 
these  pioneers  could  fit  up  and  cover  two  log  huts;  bodies  that 
had  been  laid  up  by  some  of  the  Indian  traders  or  F rench  AAJiile 
the  troops  were  stationed  in  Fort  Clark  two  squares  aboAm.” 


1825.  U.  S.  REPORT  ON  ('ANAL — REFKRKNCrE  TO  TJSE  IN  NATIJKAL  STATE. 

In  House  Report  No.  wliic'li  was  a i‘e}K)rt  to  tlie  2(1  Scission 
of  tlie  IHtli  Cbngresis,  niade  Feliruary  1,  182*1,  and  found  in  House 
Ke})orts,  18tli  Congress,  2d  Session,  Vol.  1,  Serial  No.  172. 

Tlie  full  title  of  this  report  is  as  follows : 

“Report  of  the  Select  Committee  to  which  was  referred  on 
the  third  ultimo  a memorial  of  the  General  Assembly  of  Illi- 
nois, upon  the  subject  of  the  Canal  Communication  between 
Illinois  River  and  Lake  Michigan,  accompanied  with  a hill  to 
aid  the  State  of  Illinois  in  the  accomplishment  of  the  same. 

“February  1,  1825:  Read  and  with  the  hill  committeed  to 
a committee  of  the  whole  house.”  (Abst.,  p.  730.) 

In  the  body  of  the  report  we  find  the  following: 

“In  examining  this  subject,  the  attention  of  the  Committee 
has  been  drawn  to  seAmral  points  wdiich  seem  naturally  to  bear 
upon  it;  and  first,  as  to  the  practicability  of  making  the  pro- 
posed connection  of  those  waters.  On  this  branch  of  their  in- 
quiries the  Committee  can  see  no  room  to  doubt.  Although  the 
report  of  the  Commis'sioners  and  engineers  has  not  been  made 
to  the  General  Assembly  at  the  time  of  adopting  the  memorial 
that  has  been  referred  to  the  Committee,  the  Legislature  of 
the  State  entertained  no  doubt  on  that  point.  Such,  indeed, 
is  the  concurrence  of  scientific  observation  and  actual  experi- 
ence in  relation  to  the  fact  that  in  order  to  establish  it,  the 
report  was  not  necessary.  The  experience  to  which  the  Com- 
mittee refers,  i&  that  of  many  years  and  which  is  a matter  of 
historical  notoriety.  It  is  that  of  repeated  passages  having 
been  made,  by  nnimterrupted  navigation  from  the  river  into 
the  lake.’’  (Abst.,  p.  731.) 

The  Committee  of  the  whole  house  in  their  report  quoted  the 
above  paragraph  practically  verbatim,  as  will  appear  by  an  exam- 
inatdon  of  House  Report  No.  147,  19th  Congress,  1st  Session,  Vol. 
2,  Serial  No.  183. 

3.  SUMMARIES  BY  HISTORIANS  AND  ENCYCLOPEDISTS. 

M'^e  submit  herewith  extracts  from  well-known  standard  author- 
ities; as  to  some  of  which  formal  proof  that  they  bore  this  char- 
acter Avas  put  in  evidence;  and  as  to  the  rest  their  character  is 
too  well  known  to  need  any  such  voir  dire.  Though  tlie  ])assages 
(]uoted  lielow  were  not  in  all  cases  formally  embodied  in  the  record 
below,  they  are  part  of  the  historic  literature  of  the  subject  of 
which  this  court  takes  judicial  notice  and  as  to  which  the  introduc- 
tion of  the  passages  in  evidence  was  unnecessary. 


114 


IJndor  this  heading’  may  also  ho  eonsidei'od  the  previous  extracts 
from  Wiiisor,  Imlay,  Heck  and  Drown. 

Ill  Parkmaii’s  ^'LctSalle  and  the  Discovery  of  the  Great  Westd^ 
on  jiage  ()8  we  find  tlie  following  concerning  Marquette’s  second 
voyage : 

^^They  were  more  than  a month  in  coasting  its  western 
border,  when  at  length  they  reached  the  river  Chicago,  entered 
it,  and  ascended  about  two  leagues.  * * * There  was  an 

encampment  of  Illinois  within  two  days’  journey;  and  other 
Indians,  passing  by  this  well  known  thoroughfare,  occasionally 
visited  them,  treating  the  exiles  kindly,  and  sometimes  bring- 
ing them  game  and  Indian  corn.” 

On  pages  65,  67,  68,  69  we  also  find  the  following  passage : 

‘^On  the  thirtieth  of  the  month  they  left  their  hut,  which 
had  been  inundated  b}^  a sudden  rise  of  the  river,  and  carried 
their  canoe  through  mud  and  water  over  the  portage  which 
led  to  the  Des  Plaines.  Marquette  knew  the  way,  for  he  had 
passed  by  this  route  on  his  return  from  the  Mississippi.  Amid 
the  rains  of  opening  spring,  they  floated  down  the  swollen 
current  of  the  Des  Plaines,  by  naked  woods  and  spongy,  sat- 
urated prairies,  till  they  reached  its  junction  with  the  main 
stream  of  the  Illinois,  which  they  descended  to  their  destina- 
tion, the  Indian  town  which  Marquette  calls  Kaskaskia.  Here, 
as  we  are  told,  he  was  received  Dike  an  angel  from  Heaven.’  ” 
(Abst.,  p.  735.) 

In  a later  edition  published  in  1901,  in  a note  to  page  24,  speak- 
ing of  the  movements  of  LaSalle. 

^‘The  Hres-beau  havre’  may  have  been  the  entrance  of  the 
river  Chicago,  whence  we  'shall  see  that  he  took  this  course 
in  his  famous  exploration  of  1682.”  (In  mid-winter  and  by 
sledges.)^ 

(Footnote  Concerning  Marquette)  : 

^The  late  Judge  John  D.  Caton,  in  his  paper  ‘^Last  of  the  Illi- 
nois,” read  before  the  Chicago  Historical  Society,  December  13, 
1870,  published  by  the  Fergus  Printing  Company,  1876  (not  read 
at  trial  below),  repeats  the  story  from  Father  Dablon  of  the  trip 
of  Marquette  and  Joliet  down  the  Mississippi  and  back  up  tlie 
Illinois  to  the  Chicago  and  of  their  return  in  1675,  of  which  latter 
trip  he  says : 

u*  * * They  coasted  the  west  side  of  the  lake  in  open 

boats  or  canoes,  in  the  latter  part  of  the  season  when  the  lake 


1834 — Sclioolcraft’s 

NARRATIVE  OF  AN  EXPEDITION  TIIROUCMI  THE  UPPER  MISSISSIPPI  TO 
ITASCA  T.AKE,  THE  ACTUAL  SOURCE  OF  THIS  RIVER.  * * * 

New  York. 

Harper  & Brothers,  1834. 

Introducto ry  M em o randa. 

‘‘The  principal  points  at  v/hich  llie  waters  of  the  Missis- 
sippi Eiver  communicate,  by  interlocking  rivers  and  portages, 
with  the  lakes,  are  the  following,  proceeding  from  north  to 
south,  namely: 

1.  By  the  Illinois  and  Chicago  Creek  (with  Lake  Michi- 

gan). 

2.  By  the  Wisconsin  and  Fox  Elvers  (with  Green  Bay). 


is  boisterous  and  forbidding.  It  was  a perilous  and  fatigTiing 
voyage  of  four  months  duration  and  sorely  tried  the  endur- 
ance of  the  zealous  missionary.  They  at  last  reached  Chi- 
cago, just  as  winter  was  closing  in,  and  proceeded  up  the  South 
Branch  of  the  river  to  where  Bridgeport  now  stands,  and 
there  built  a hut  in  which  the  missionary  wintered.  After 
the  lonely  and  tedious  winter  was  past,  he  proceeded  down 
the  Illinois  Eiver  to  the  great  city  of  the  Illinois,  below 
Starved  Eock  and  there  established  the  first  mission  ever 
founded  in  the  Illinois  country  and  named  it  Kaskaskia.” 

“the  early  history  of  ILLINOIS.” 

By  Sidney  Breese,  Chief  Justice. 

Page  96  note: 

“It  is  stated  by  Parkman  that  Manpiette  moved  two  leagues 
from  the  mouth  of  the  river.  The  river  was  frozen  over,  and 
it  is  not  ])robable  that  they  iiaddled  the  canoe  up  the  stream 
two  leagues  or  six  miles.  But  as  the  mouth  of  the  river  was 
then  at  the  foot  of  Madison  Street,  they  moved  across  the 
prairies  to  the  south  lirancli  and  up  along  the  branch  to  the 
vicinity  of  Mud  Lake,  about  where  it  is  now,  comes  in  as  a 
tributary  of  the  south  liranch  above  McCormicks’  present 
reaper  factory.  If  we  place  the  location  between  that  and 
the  bridge  over  the  branch  at  AYestern  Avenue,  we  will  have 
about  the  two  leagues,  or  six  miles,  traveled  over  to  get  there 
from  the  foot  of  Madison  Street.  This  location  was  just 
where,  in  times  of  high  water,  canoes  were  carried  through 
Mud  Lake  to  the  D'es  Plaines  Eiver,  and  so  the  ])ortage  was 
made  down  to  the  Illinois  and  Kankakee  Elvers.” 

(Abst.,  p.  737.) 

Fnd  Alarouette  footnote  here. 


)).  By  the  (liippewa  and  Miislikee  (oi*  Mauvais)  Rivers 
(witli  Lake  Superior). 

4.  P>y  the  St.  Croix  and  Bnrntwood  (or  Brule)  Jlivers  (do). 

0.  By  the  Savanne  and  St.  Louis  Rivers  (do). 

“The  routes  by  the  Illinois,  and  by  the  Wisconsin,  were 
hrst  laid  open  by  French  entcr])rise,  and  liave  been  used  for 
('aiioes  and  Hat-bottoni  boats  in  their  natural  state,  and  witli- 
ont  any  ])ractieal  improvement  which,  as  yet,  facilitates  com- 
nmnieation,  a])out  a hundred  and  sixty  years.  They  are  so 
familiar  in  our  geogra})hy,  have  l)een  so  mucli  explored,  and 
ai-e  so  well  a'i)])reciated,  that  it  is  only  to  be  desired  that  early 
and  efficient  measures  should  b^  taken  for  opening  them.” 
(p.  121.)  (Abst.,  p.  740.) 

1836 — From  the  '^Encyclopedia  of  Geography  * * By 

Hugh  Murray,  F.  R.  S.  F.  American  Edition.  (Copyriglited 
1830,  bv  Carv,  Lea  & Blanchard,  Philadelphia.  Republished 
1853.)  ‘ 

“The  Illinois,  the  principal  river  of  the  State,  is  formed 
in  the  northeastern  part  of  the  junction  of  the  Kankakee  and 
the  lies  Planes  and  flows,  by  a southerly  course  of  300  miles, 
to  the  Mississippi.  For  the  distance  of  nearly  50  miles  in  the 
upper  part  of  its  course,  there  are  obstructions  to  its  navi- 
gation in  a low  stage  of  water  and  fhe  rapids  above  mouth  of 
the  Vermilion  River  can  be  passed  only  in  times  of  flood.  Be- 
low this  steamboats  of  moderate  burthen  find  no  impediments 
through  a distance  of  260  miles.  ‘The  current  through  the 
distance  last  mentioned  is  exceedingly  gentle,  often  quite  im- 
perceptible ; indeed  this  part  of  the  river  may  with  much  pro- 
priety be  denominated  an  extended  pool  of  stagnant  water.’ 

(Long’s  Expedition  to  the  St.  Peter’s  River.) 
***** 

“The  Des  Planes  rises  in  Wisconsin  and  runs  for  some 
distance  parallel  to  the  shore  of  the  Lake  Michigan,  and  not 
more  than  ten  miles  from  the  lake  with  which  there  is  a navi- 
gable communication  through  which  loaded  boats  often  pass 
during  the  spring  floods.”  (p.  562.) 

(Abst.,  pp.  213-214.) 

***** 

Smithes  History  of  Wisconsin: 

(The  History  of  Wisconsin  in  three  parts,  historical,  docu- 
mentary and  descriptive,  compiled  by  direction  of  the  Legis- 
lature of  the  State,  by  William  R.  Smith,  President  of  the 
State  Historical  Society  of  Wisconsin,  Part  I,  Historical ; Vol. 
I,  Madison,  AVis.;  Beriah  Brown,  Printer,  1854.) 

Pages  82-83,  occurs  the  following: 

“One  among  the  first  of  the  operations  of  the  AVestern  com 
pany  was  to  send  eight  hundred  emigrants  to  Louisiana.  They 
arrived  in  August,  1718,  at  Hauphine  Island,  Bienville,  La., 


197 


in  tlio  siuninor  of  tlie  same  year  selected  the  site  for  the  eapital 
of  the  new  empire,  whicli,  in  honor  of  the  Recent  of  France,  he 
named  ‘New  Orleans.'  Of  the  recent  emigrants  from  P^’ranee, 
eighty  convicts  were  sent  among  the  Coppices  tliat  oversy)read 
New  Orleans  to  prepare  room  for  a few  tents  and  cottages. 
At  the  end  of  three  years  the  place  was  still  a wilderness  spot 
where  two  Imndred  persons,  sent  to  construct  a city,  had  hut 
encamped  among  unsubdued  canebrakes.  The  character  of  the 
emigration  was  not  that  of  iadustry,  energy,  or  of  informa- 
tion. Some  perished  for  want  of  enterprise,  some  from  the 
climate,  and  in  places  of  ascending  the  river  in  ships,  they  all 
blindly  disembarked  on  the  miserable  coast  to  make  their 
way  as  best  they  could  to  the  lands  that  had  been  ceded  to 
them.  An  extraordinary  instance  of  energy  may  be  men- 
tioned : Du  Tissenet,  a Canadian  emigrant,  having  purchased 
’ a compass,  and  procured  an  escort  of  fourteen  Canadians,  went 
fearlessly  from  Dauphine  Islands  by  way  of  the  Mobile  River 
to  Quebec  and  returned  to  the  banks  of  the  Mississippi  with 
his  family.  At  this  period  the  three  great  avenues  from  the 
St.  Lawrence  to  the  JMississippi  ivere^  one  hg  ivay  of  Fox  and 
Wisconsin  Rivers;  one  by  ivay  of  Chicago,  luliich  had  been 
safely  pursued  since  the  days  of  Marquette;  and  one  by  the 
Miami  of  the  lakes,  where  after  crossing  the  portage  of 
three  leagues  over  the  summit  level,  a shallow  stream  led  into 
the  Wabash  and  the  Ohio.”  (Abst.,  }).  740.) 

In  connection  with  this,  I Andreas’  Chicago , p.  06,  prints  “Sec- 
tion, of  Charlevoix’s  Map,  1774,”  which  labels  the  Des  Plaines 
River  “R  des  Illinois”  and  -shows  “Chicago  River”  and  between 
the  two  gives  the  description  “Portage  les  Chenes.” 

I Andreas’  History  of  Chicago,  p.  07  says: 

“Soon  after  the  opening  of  the  18th  century  this  route  to 
the  Mississippi  became  so  dangerous  that  it  was  gradually 
abandoned,  and  finally  almost  forgotten.  The  long  war  be- 
tween the  Illinois  and  the  Iroquois  had  made  the  Kaskaskia 
fearful  and  timid.  They  were  directly  in  the  path  of  the 
enemy  from  the  location  of  their  village,  which,  lying  far  up 
the  river,  was  first  struck  by  their  war  parties  on  their  raids 
into  the  country  of  the  Illinois.”  (Abst.,  ]).  644.) 

I Andreas,  p.  91,  under  the  title  ^^The  Fur  Trade  and  ’Traders,” 
says : 

“Until  the  friendly  111  inois  were  driven  from  their  river, 
French  traders  passed  freely  to  and  fro  over  the  ‘Chicago 
Route’  from  Canada  to  Louisiana  and  colonists  came  and 
built  their  cabins  around  the  Fort  St.  Louis.  When  the  tribes 
of  the  Illinois  were  driven  from  their  country,  and  Port  St. 


398 


]jouis  liad  been  abandoned  and  finally  destroyed,  this  path 
beeaine  for  a time  too  dangerous  for  even  the  daring  voy- 
ageiirs,  aiut  this  route  of  the  Canadians  to  the  Frencli  settle- 
ments and  to  the  interior  of  the  country  was  exchanged  for 
one  more  safeC^ 

And  on  page  92  he  continues : 

“The  first  trace  of  white  occupation  of  the  site  of  (diicago 
after  it  became  the  home  of  the  Pottawatomies  is  by  a French 
trader  named  Guarie,  who  located  on  the  west  side  of  the 
North  Branch  of  the  Chicago  Biver,  near  the  forks.  Gurdon 
S.  Hubbard,  wliose  personal  knowledge  of  Chicago  dates  back 
to  1818,  says  of  this  trader  (Blanchard’s  ^History  of  Chicago,’ 
page  757) : 

“ ‘Prior  to  1800  the  north  branch  of  the  Chicago  Eiver  was 
called  by  the  Indian  Traders  and  voyageurs,  “River  Guarie,” 
and  the  south  branch,  “Portage  River.”  On  the  west  side  of 
the  north  branch  a man  by  the  name  of  Guarie  had  a trading 
liouse,  situated  on  the  bank  of  the  river  about  where  Fulton 
Street  now  is.  This  house  was  enclosed  by  pickets.  He  lo- 
cated there  prior  to  1778.  This  tradition  I received  from 
Messrs.  Antoine  Heschamps  and  Antoine  Besom,  who,  from 
about  1778,  had  passed  from  Lake  Michigan  to  the  Illinois 
River  yearly;  they  were  old  men  when  I first  knew  them  in 
1818.  This  tradition  was  corroborated  by  other  old  voyageurs. 
The  evidences  of  this  trading  house  were  pointed  out  to  me 
by  Mr.  Deschamps ; the  corn  hills  adjoining  were  distinctly 
traceable,  though  grown  over  with  grass.’  ” 

I Andreas,  at  page  100,  under  the  heading  “Chicago  from  1816 
to  1830,”  continues: 

“From  1816,  when  Fort  Dearborn  was  rebuilt,  to  1829-30 
there  was  little  change  in  the  outward  appearance  of  Chicago. 
Samuel  A.  Storrow,  of  Massachusetts,  Judge- Advocate,  U.  S. 
A.,  in  1816-18,  made  a three  months  tour  of  the  West  in  1817, 
visiting  Fort  Dearborn  on  his  route.  In  a letter  to  Major- 
General  Brown,  which  was  published  in  the  Wisconsin  His- 
torical Society’s  collection,  he  says: 

‘ River  Chicago  (or,  in  English,  ^Yild  Onion 
River)  is  deep,  and  about  forty  yards  in  width.  Before  it 
enters  the  lake,  its  two  branches  unite,  the  one  proceeding 
from  the  north,  the  other  from  the  west,  where  it  takes  its 
rise  in  the  very  fountain  of  the  Plein,  or  Illinois,  which  flows 
in  an  opposite  direction.  The  source  of  these  two  rivers  illus- 
trates the  geogra]3hical  phenomenon  of  a reservoir  on  the  very 
summit  of  a dividing  ridge.  In  the  autumn  they  are  both 
without  any  apparent  fountain,  but  are  formed  within  a mile 
and  a half  of  each  other  by  some  imperceptible  undulations 
of  the  prairie,  which  drain  it  and  lead  to  different  directions. 


19!) 


Blit  in  tlio  spring’  tlio  space  between  the  two  is  a sin<2^Ie  sli(H‘t 
of  water,  the  (‘oinnion  reservoir  of  both,  in  the  center  of  whicli 
tliere  is  no  cnrrent  towards  either  of  the  opyiosite  streams,’  ” 

1 Andreas,  107-8,  in  a sketch  of  Baissell  E.  Heacoclc,  the  first  law- 
yer of  Chicago  (a  native  of  Litchfield,  Conn.,  1779;  licensed  to 
yiractice  hy  the  Supreme  Court  of  Illinois,  January  24,  1821;  ar- 
rived at  Chicago  July  4,  1827 ; appointed  one  of  the  seven  justices 
for  Cook  Counly  Sept.  10,  1831),  says: 

‘ ^ In  1832  there  appeared  in  a Buffalo  paper  several  letter 
from  him  to  his  brother,  a merchant  of  that  place,  describing 
Chicago  and  the  territory  immediately  to  the  west  in  glowing 
terms — the  beauty  of  the  country  and  the  fertility  of  its  soil. 
He  referred  to  the  land  grant  by  Congress  for  the  construction 
of  the  Illinois  and  Michigan  Canal ; and,  to  show  the  entire 
feasibility  of  the  project,  stated  that  in  high  water  boats 
passed  from  the  south  branch  of  the  Chicago  Eiver  into  the 
Des  Plaines,  and  that  by  this  means  the  American  Pur  Com- 
pany transported  their  annual  supplies  to  their  trading  posts 
on  the  Illinois  Eiver  and  its  tributaries.” 

1837. — ‘Llltnois  m 1837.” 

A Sketch  descriptive  of  the  Situation,  Boundaries,  Face  of 
the  Country,  Prominent  Districts,  Prairies,  Rivers,  Minerals, 
Animals,  * * * of  the  State  of  Illinois  * * to- 

gether with  a Letter  on  the  Cultivation  of  the  Prairies. 

Hon.  H.  L.  Ellsworth.  * * * 

Published  bv  S.  Augustus  Mitchell,  and  bv  Origg  & Plliott, 
Number  9 N.  4th  St.,  1837. 

A well  engraved  map  is  ]U‘efaced  which  traces  the  Des  Plaines 
and  lays  down  and  labels  upon  it  the  towns  of  ‘d\ankakee”  (im- 
mediately between  the  Des  Plaines  and  Kankakee  Rivers),  ^M)res 
den,”  just  across  the  Des  I^laines  from  Kankakee,  then  Juliet, 
Lockport,  Des  Plaines  and  (near  the  yiresent  ‘‘Riverside”) 
Canalport  (the  latter  being  at  the  mouth  of  the  Little  Des  Plaines; 
the  latter  stream  is  well  marked,  but  not  named). 

Under  the  heading  “Rivers,”  he  says  of  the  Illinois  and  Des 
Plaines  Rivers  the  following  (pp.  34,  35,  36)  : 

“The  commerce  of  the  (Illinois)  river  is  extensive,  and  in- 
creasing wfith  a rapidity  knovm  only  to  the  rich  agricultural 
regions  of  the  Western  States.  Several  steamboats  are  con- 
stantly employed  in  its  trade,  and  many  others  make  occa- 
sional trips;  about  35  different  boats  passed  and  landed  at 
Beardstown  in  183(),  making  the  arrivals  and  departures  450. 


L>()() 


''riie  year  1828  was  tlie  eominenc'ement  of  steam  navigation  on 
this  river.  * * * 

‘Mn  tlie  Illinois  iriver  there  are  })nt  few  sand  l)ars  and  im- 
pediments of  anv  eonse(iuence  until  we  reach  tlie  Starved 
ilock,  about  one  mile  above  tlie  town  of  Utica.  Here  we  meet 
with  the  first  perinanent  obstruction,  being  a ledge  of  sand- 
stone rocks  immediately  at  the  foot  of  the  lower  rapids,  and 
extending  entirely  across  the  lied  of  the  river.  This  point  is 
210  miles  by  the  course  of  tlie  Illinois  from  the  Mississifipi. 
'The  town  of  Utica  may  therefore  be  justly  considered  as  the 
head  of  steamhoat  navigation  on  the  Illinois  Eiver,  although 
steamers  at  high  water  frequently  ascend  nine  miles  further, 
to  Otta^v)a.  The  sum  of  $100,000  has  been  appropriated  by  the 
Legislature  of  the  State  to  improve  the  navigation  of  the  Illi- 
nois, which  may  be  made  good  at  all  stages  of  the  water. 

* * Perhaps  no  river  of  the  Western  country  has  so 

tine  a boatable  navigation  for  the  same  distance,  or  waters  a 
richer  or  more  luxuriant  tract  of  country. 

^‘The  Des  Plaines  Eiver  is  the  northern  head  branch  of  the 
Illinois.  It  rises  in  Wisconsin  Territory,  a few  miles  west  of 
tlie  town  of  Eacine,  on  Lake  Michigan,  and  flowing  through , 
the  north  part  of  the  State,  it  joins  the  Kankakee  at  the 
boundary  line  between  LaSalle  and  'Will  Counties,  where  they 
form  the  Illinois  Eiver.  The  Des  Plaines,  in  its  course  of  150 
miles,  runs  generally  over  a bed  of  limestone.  The  country 
along  its  borders  is  populating  rapidly,  notwithstanding  the 
apparent  deficiency  of  timber.  About  .42  miles  above  the 
mouth  of  this  stream  is  a swamp  connecting  it  with  the  Chi- 
cago Eiver,  through  which  boats  of  some  burden  have  often 
been  navigated  into  Lake  Michigan.  This  route  was  used  by 
the  traders  as  a medium  of  communication  between  the  Great 
Lakes  and  the  Mississippi,  from  the  first  discovery  of  the 
country  by  Europeans;  this  circumstance  first  suggested  the 
idea  of  an  artificial  connection  by  means  of  a canal  at  this 
point.”  (Abst.,  p.  722.) 

Extract  from  the  History  of  Will  County,”  by  George  H. 
Woodruff,  1878.  (Excluded  by  the  court  below.)  On  page  607  we 
find  the  following: 

^U^s  early  as  1834  the  products  of  the  farm  were  boated 
down  tlie  Kankakee  to  the  Des  Plaines  and  up  the  latter  river 
to  Chicago.  It  is  related  that  during  the  year  named,  some 
parties  loaded  a boat  on  Sugar  Creek,  a tributary  of  the  Iro- 
quois, with  300  bushels  of  oats,  300  bushels  of  wheat  and  some 
hams  with  the  design  of  taking  them  to  Chicago  to  supply  the 
garrison  stations  there.  The  trip  down  the  Kankakee  was 
accomplished  without  accident,  or  unusual  trouble,  but  after 


201 


oiitoriiig  tlio  Dos  I^laines,  wlioii  iioar  l.^'roat’s  Island,  tlie  boat 
dipped  water  and  so  dampened  tlie  ^rain  that  they  were  obli^>ed 
to  unload  and  try  to  dispose  of  tlieir  f)roduee  at  that  point. 
At  that  time  settlers  were  arriving  in  that  neighborhood  quite 
rapidly  and  they  liad  no  trouble  in  disposing  of  their  whole 
cargo — the  oats  at  50  and  the  wheat  at  75  cents  per  bushel/’ 

Extract  from  the  Joliet  Signal ^ a newspa])er  under  date  of  June 
8,  1847,  gives  the  following  item  of  newS' 

“ A boat  was  sunk  yesterday  in  ti^e  Des  Plaines  Eiver,  14 
miles  south  of  Joliet,  and  ten  men  drowned.  There  were  16 
men  and  a yoke  of  oxen  in  the  boat  and  the  accident  was 
caused  by  the  oxen  crowding  to  the  bow  of  the  boat,  causing 
it  to  fill  and  sink.  The  water  was  twenty  feet  deep.”  (Abst., 
p.  403.) 


THE  PORTAGE. 

On  Joliet’s  map  of  1674' we  find  the  stream  plainly  marked  and 
connected,  and  the  connection  labeled  Portage.”  (Abst.,  p.  1916.) 

On  Marquette’s  original  map  of  1674  we  find  the  river  plainly 
marked  as  actually  connecting  with  the  ^^Lac  des  Ilinois”  (Abst. 
p.  1942).  (From  Government  Engineers’  Peport  of  1886.)  (Fac- 
simile of  original  preserved  in  St.  Mary’s  College,  Montreal.) 

On  Thevenot’s  map  of  1681  we  find  the  streams  plainly  shown 
as  connected  by  a small  lake,  which  is  labeled  ^‘Portage.”  (Abst. 
p.  1917.) 

On  Charlevoix’s  ma]:)  of  1774  we  find  the  two  streams  drawn 
close  together,  with  the  inscription  between  ‘^Portage  les  Chenes.” 
(Abst.,  p.  1916.) 

The  map  described  by  Parkman,  page  450,  opposite  the  site  of 
Chicago,  says  Parkman,  are  v,u*itten  the  words,  of  which  the  fol- 
lowing is  a literal  translation: 

‘^The  largest  vessels  can  come  to  this  ])lace  from  the  outlet 
of  Lake  Erie,  where  it  discharge's  into  Lake  Frontenac  (On- 
tario) ; and  from  this  mark  marsh  into  which  they  can  enter, 
there  is  only  a distance  of  a thousand  paces  to  the  river  La 
Divine  (Des  Plaines)  which  again  led  them  to  the  river  Col- 
bert (Mississippi)  and  then  to  the  Gulf  of  Mexico.”  (Abst., 
p.  738. 

This  map,  Parkman  says,  was  made  ^Ghree  years  or  more  after 
Galinee  made  the  map  mentioned  above”  and  this  in  turn,  he  says, 
was  made  in  1670.  (Abst.,  p.  738.) 


202 


Ta^-es  452,  452,  I\arkman  mentions  two  other  maps  by  Joliet, 
bearing  in  snbstance  the  same  inscription  as  that  given  on  his  first 
map.  (Al)st.,  }).  728.) 

In  1099  St.  Cosme  writes  of  using  the  passage  on  the  2d  of  No- 
vember in  the  previous  year.  (Abst.,  p.  701.) 

In  1778  Thomas  Hutchins,  a distinguished  Englisli  engineer,  af- 
terwards Surveyor  General  of  the  United  States,  in  the  book  which 
became  the  standard  authority  and  earned  his  promotion  to  the 
great  office,  describes  the  passage  as  ‘‘by  two  portages  between 
the  latter  and  the  Illinois  River,  the  longest  of  which  does  not 
exceed  4 miles.”  (Abst.,  p.  727.) 

In  1790  Hugh  Heward  records  ‘‘May  11,  1790,  a showery  day 
and  wind  af  west,  the  carrying  place,  about  4 mile,  got  over  nearly 
at  midday,  from  thence  passed  in  the  run  a small  lake  to  the  river 
Des  Plaines.”  (Abst.,  p.  745.) 

In  1790  Governor  St.  Clair,  describes  the  communication  from 
Kaskaskia  as  ‘‘up  the  Illinois  River,  up  the  Chicago  and  there  by 
a small  portage  into  Lake  Michigan.”  (Abst.,  p.  728.) 

In  1795  the  treaty  of  Greenville,  made  by  Gen.  4Vayne  with  the 
Indians,  after  his  successful  Indian  wars,  reserved  the  right  of 
free  passage  by  land  and  water  ‘‘from  the  mouth  of  the  Chicago 
to  the  commencement  of  the  portage  between  the  river  and  the 
Illinois,  and  down  the  Illinois  to  the  Mississippi.”  (Abst.,  p.  762.) 

In  1801  to  1811,  incinsive,  the  11th  annual  editions  of  the  Navi- 
gator stated  that  ‘‘between  a branch  of  the  Illinois  and  the  Chi- 
cago River,  which  empties  into  Lake  Michigan,  there  is  a portage 
of  2 miles.  Prom  this  portage  to  the  lake  is  Batteaux  navigation 
of  16  miles.”  (Abst.,  p.  719.) 

In  1816  Major  S.  H.  Long  traversed  the  route  and  marked  upon 
his  map  the  dotted  line  between  the  two  streams,  which  he  de- 
scribed vnth  the  phrase  ‘‘the  distance  from  the  River  Des  Plaines 
to  Chicago  River  by  this  w^ater  course  is  about  9 miles,  through 
the  greater  part  of  which  there  is  more  or  less  water,  so  that  the 
portage  is  seldom  more  than  2 miles  in  the  dryest  season,  but  in 
a wet  season  boats  pass  and  repass  in  facility  between  the  two 
rivers.”  And  Graham  & Phillips  described  the  portage  as  “at 
one  season  of  the  year  an  uninterrupted  water  connection  for  boats 


of  6 or  8 tons  hurdoii,  at  anotlior  season  a portage*  of  2 

miles,  at  another  a portage  of  7 miles  ; at  another  a port- 

age of  50  miles.”  (Abst.,  pp.  708,  712.) 

In  1810  Dana,  in  his  Principal  Roads  and  Routes,  described  the 
portage  from  Chicago  as  ‘^over  tlie  portage  and  up  tlie  Plein.” 
(Abst.,  p.  718.) 

In  1821  John  Walls,  Surveyor  of  the  United  States,  surveyed 
the  Government  lands  and  marked  the  line  between  the  two  with 
the  word  ‘ ‘ Portage  Road,  ’ ’ and  the  point  where  the  portage  road 
struck  the  river  with  the  words  in  his  field  notes,  ‘‘Head  of  Navi- 
gation. ’ ’ 

In  1823  Mr.  Keating,  of  Major  Long’s  expedition,  a geologist 
and  historiographer,  said:  “We  reached  the  place  where  the  old 
portage  road  meets  the  current,  which  was  here  very  distinct  to  the 
south  * * *.  Lieut.  Hopson,  who  accompanied  us  to  the  Des 

Plaines,  says  that  he  had  travelled  it  with  ease  in  a boat  loaded 
with  lead  and  flour.  The  distance  from  the  port  to  the  intersec- 
tion of  the  portage  road  and  Des  Plaines  is  supposed  to  be  about 
12  or  13  miles.”  (Abst.,  p]).  705-706.) 

In  February,  1825,  the  congressional  committee  re])orted  in  writ- 
ing upon  the  memorial  of  the  General  Assembly  of  Illinois  in  S])eak- 
ing  of  the  “inncticability  of  making  the  |)roposed  connection  of 
waters,”  said,  “the  experience  to  which  the  Committee  refers  is 
that  of  many  years,  and  which  is  a matter  of  historical  notoriety. 
It  is  that  of  repeated  passages  having  been  made  hg  nninternipted 
navigation  from  the  river  into  the  laked’  (Ahst.,  731.) 

We  submit  that  there  are  few  facts  as  to  history  of  early  travel 
in  America  which  are  better  attested  than  this. 

We  submit  that  the  uniform  use  of  the  term  “])ortage”  to  de- 
scribe, this  passage  for  150  years  is  good  evidence  tliat  the  streams 
were  so  used  as  a piddhc  highway. 

THE  PORTAGE TTS  IMPORTANCE  TO  TRAVEL. 

In  ‘‘The  American  Nation,  A History,  Vol.  1 1,  Basis  of  .Wneri- 
can  History,  1500-1900,  by  Prof.  Livingston  Farrand  (Columbia 
University),  Harper  Brothers,  1904,”  which  was  read  in  evidence, 


the  uses  of  the  waterways  and  portages  in  this  early  time  is  de- 
scribed thus  ((Chapter  2,  pp.  23-27)  : 

‘^Tlie  two  most  important  factors  in  tlie  exploration  and 
settlement  of  a country  are  the  ivatenvays  and  mountain  sys- 
tems— the  one  an  assistance  to  travel,  the  other  an  obstacle. 
In  the  sheltered  bays,  inlets  and  rivers  of  the  Atlantic  coast 
of  North  America  the  early  European  settlements  were  mostly 
placed;  but  some  locations  were  chosen  well  inland,  up  the 
larger  rivers,  and  often  near  the  head  of  navigation  for  sea- 
going vessels — for  example,  Quebec  and  Montreal  on  the  St. 
Lawrence,  wihere  the  lower  shores  were  forbidding;  and  the 
settlements  on  the  James  and  Delaware,  where  fear  of  attack 
by  sea  determined  the  sites. 

‘M^’roni  these  points  as  bases  the  early  exploration  and  set- 
tlement of  the  country  extended,  and  the  significance  of  the 
rivers  and  streams  at  once  became  evident.  The  dense  for- 
ests, where  the  only  road  was  the  narrow  Indian  trail,  were 
not  passable  except  on  foot;  even  pack  animals  could  be  used 
with  difficulty.  The  streams,  however,  offered  a ready  means 
of  transport  and  the  light  birch-bark  canoe,  which  could  be 
shouldered  over  the  necessary  portages,  made  it  possible  for 
the  early  voyageurs  to  penetrate  far  into  the  heart  of  the 
continent,  carrying  their  merchandise  for  barter  and  return- 
ing with  their  bales  of  furs.  Eiver  travel  on  east  and  west 
lines  involved  crossings  from  one  stream  to  another,  hence  a 
point  of  great  interest  to  the  pioneer  was  the  portage.  (Abst., 
p.  748.) 

^ ‘ From  the  Atlantic  seaboard  the  St.  Lawrence  and  the  Great 
Lakes  offered  the  readiest  access  to  the  interior  of  the  con- 
tinent, and  as  a natural  consequence  we  find  the  French,  the 
settlers  of  the  St.  Lawrence  basin,  the  first  explorers  of  a 
large  part  of  the  interior  of  North  America;  and  this,  too,  be- 
fore the  English  farther  south  had  even  passed  the  Alleghan- 
ievs.  By  portages  from  Lake  Superior  to  Eainy  Lake  and 
thence  to  Lake  of  the  Woods,  the  French  gained  the  north- 
ward-flowing stream  and  penetrated  to  Hudson  Bay  and  far 
into  the  Canadian  northwest.  Their  successors,  the  English 
and  Scotch  of  the  fur  companies,  were  the  first  to  reach  the 
Pacific  coast  from  the  interior.  It  is  interesting,  too^  that 
the  first  portage  to  the  Mississippi  Valley  discovered  by  ex- 
plorers was  one  of  those  lying  farthest  west — ^that  from  the 
Fox  Eiver  to  the  AVisconsin. 

^^The  place  and  convenience  of  these  portages  were  well 
known  to  the  Indian,  and  the  European  as  a rule  merely  fol- 
lowed the  trail  of  the  savage.  (Abst.,  p.  749.) 
***** 

‘‘From  the  Great  Lakes  to  the  Mississippi  basin  there  was 
a choice  of  paths.  In  the  northwest  the  French  often  crossed 


'Jh) 

iVoin  tlio  hoad  oi:*  liako  Sii[>ei*ior  to  the  llpiXii*  iVI ississipf)!  })y 
way  of  the  St.  Ijoui®  Uiver.  Tlie  most  important  portage, 
liowever,  was  probably  that  which  led  from  the  Fox  to  the 
AViscoiisiii  River,  first  used  in  by  Joliet  and  Manjuette, 
and  later  the  site  of  Fort  Winnebago.  At  the  southern  end 
of  Lake  Micliigaii  an  important  trail  led  from  the  (diicago  to 
the  Des  Plaines  and  so  to  the  Illinois,  on  the  same  line, as  the 
present  Chicago  Prainage  Canal ; the  portage  was  from  four 
to  nine  mites  in  length,  according  to  the  season.  Other  carry- 
ing places  of  that  region  were  from  the  Cabnnet  to  the  Des 
Plaines,  and  from  the  St.  Joseph  to  the  Kankakee;  but  that 
from  the  St.  Joseph  to  the  Wabash  was  the  principal  channel 
of  supplies  for  the  early  settlers  at  Vincennes.”  (xAbst.,  p. 
748.) 


THE  POKTAGE ADDENDA. 

In  the  ‘‘Transactions  of  the  Illinois  Historical  Society  for  the 
Year  1904”  (not  produced  at  the  hearing)  (publication  No.  9 of 
the  Illinois  Historical  Library),  is  published  a paper  by  Mr.  John 
F.  Steward  of  Chicago,  entitled  Chicago  — Origin  of  the  Name  of 
the  City  and  the  Old  Portages”  (pp.  460-466).  In  this  paper  Mr. 
Steward  says  : 

^‘On  13  early  maps  before  me,  mostly  French,  the  Indian 
town,  portage  and  trading  i)ost  is  spelled  as  follows.  Franque- 
lin,  1687  (Checagou;  Tiileman,  1688,  Chekagou;  Delisle,  1703, 
Checagou;  Sutteri,  1710,  (!)  Checagon.  (Idiis  is  probably  a 
misprint.  I find  the  script  u in  French  often  copied  in  unfa- 
miliar names  as  n.)  Old  French  map  in  British  Museum,  1718, 
Chicagou;  Moll,  1720,  Chekagou;  Bollin,  1744  (two  maps), 
Chicagou;  D’Anville,  1746,  Chicagou;  Vaugondy,  1755,  Chica- 
gou; Andrews  (English),  1782.  Chicago;  Bowles,  1783,  Che- 
cagou; Pownall,  1794.  Checagou.” 

He  then  quotes  from  Father  Marquette’s  Journal  under  the  en- 
try of  Dec.  3,  1674,  thus  : 

‘‘Having  embarked  after  saying  Holy  Mass,  we  were  com- 
pelled to  make  for  a point  so  that  we  could  land,  on  account 
of  floating  ice.”  * “The  party  was  nearing  the  Chi- 

cago River,  and  I take  it  that  the  point  referred  to  was 
known  to  our  early  German  settlers  as  ‘Gross  Point,’  where 
Evanston  adorns  the  shore,  12  miles  from  the  mouth  of  the 
now  odorous  river.”  * * * “We  departed  (from  the 

point)  under  favorable  conditions,  for  the  river  of  the  port- 
age.” * * * “The  navigation  of  the  lake  is  good  enough 

from  one  portage  to  the  other,  not  having  any  breadths  (bays) 
to  cross.”  “On  the  12th  is  the  entry,  ‘During  our 


20G 


stay  at  tlie  enti-aiiee  of  tlio  i-iver/  etc.,  and  ‘‘as  we  began  yes- 
terday to  haul  onr  baggage  (over  tlie  iee)  to  approach  the 
portage/  etc.  We  tlms  gatlier  tliat  the  stay  ‘at  the  entrance 
of  the  river’  was  from  the  4th  to  the  ]2tli,  and  that  the  ‘river 
of  the  portage/  was  a then  ivell  Imoivn  stream,  and,  further- 
more, one  that  led  to  a well  known  portage;  it  was  a portage 
certainly  known  to  Marquette,  as  he  had  traveled  it  18  months 
before  wdth  Joliet.  He  gives  no  hint  that  he  knew  of  two 
portages  into  the  Des  Plaines.  His  map  of  1673  shows  the 
existence  of  but  one,  and  Joliet’s  map  makes  it  plain  that  the 
portage  availed  of  by  him  and  Marquette  ivas  hy  way  of  the 
oversowed  regions  of  south  branch  of  the  Chicago  river,  and 
not  through  the  20  miles  and  turns  of  the  Calumet  river  and 
Stony  brook,  as  told  by  Andreas  in  his  history  of  Chicago. 

“On  Governor  Hull’s  map  of  1812  we  find  the  words,  ‘The 
portage  is  generally  from  the  Chicago  R.  to  the  R.  Des  Plaines/ 
And  in  the  table  of  distances  we  read,  ‘From  Chicago  (then  a 
trading  post)  to  the  portage,  six  miles,  the  portage  seven 
miles,  from  the  portage  to  the  river  aux  Plaines  (Des  Plaines) 
three  miles.’ 

“It  is  plain  that  the  proportions  of  Hull’s  map  outrage  the 
facts,  but  it  nevertheless  gives  a good  general  idea ; the  dis- 
tanoes  given  in  figures  are  approximately  correct.  Let  it  be 
noted  that  he  shoves  two  lakelets,  in  part  connecting  the  two 
rivers,  and  that  Marquette  speaks  of  two ; and  further,  that 
LaS'alle  not  only  mentions  them,  but  refers  to  a beaver  dam 
between  them.  We  find  a close  correspondence  with  these  de- 
tails in  John  Andrews’  map  of  1782  and  in  Hull’s  map  of 
1812.  The  beaver  dam  was  on  the  small  stream  that  flowed 
westward,  as  Hull  shows,  at  any  rate,  the  fact  that  a beaver 
dam  was  between  them  shows  that  the  outlet  of  one  led  into 
the  other. 

“In  a report  to  the  king  of  Great  Britain  dated  Sept.  8, 
1721  (New  York  Colonial  documents)  we  are  told,  when  speak- 
ing of  the  traders,  that  they  passed  ‘to  the  lake  of  the  Illinois 
(Michigan),  thence  150  leagues  on  the  lake  to  the  fort  Miamis, 
situated  on  the  mouth  of  the  river  Chicagoe ; from  hence  come 
those  Indians  of  the  same  name,  viz.,  Miamis,  who  are  settled 
on  the  fore  mentioned  river  that  runs  into  Erie.’  ‘Up  the 
river  Chicagoe  they  sail  but  three  leagues  to  a passage  of  one- 
fourth  of  a league;  then  enter  a small  lake  of  about  a mile, 
and  have  another  small  portage  (to  another  lake)  and  again 
another  (portage)  of  two  miles  to  the  river  Illinois,  thence 
down  the  stream  130  leagues  to  the  Mississippi.’  * * * 

“The  distance  traveled  by  the  traders  were  always  esti- 
mated, often  very  inaccurately,  which  accounts  for  the  dispar- 
ities often  noticed.  The  approximate  distance  from  the  lake 
to  the  Des  Plaines  was  established  very  early,  particularly 


207 


iliat  to  the  head  of  tlie  portai^o,  given  as  two  Frcaieh  land 
leagues  (2A2  miles).  Taking  the  United  States  survey  of  1882 
and  following  the  winding  of  the  south  branch  of  the  river 
41  miles  (two  Frencli  leagues),  we  find,  where  Lincoln  street 
now  crosses  tlie  river,  a house  shown  on  the  map,  and  near  it 
the  words,  ‘p^^Uage  liouse.’  From  that,  alwayft  north  of  and 
along  the  margins  of  the  marshes  and  little  lakes,  to  the  Des 
Idaines  is  drawn  and  so  named  U^^i'tage  road.’  The  two  lakes 
that  head  the  marsh  between  which,  no  doubt,  was  the  beaver 
dam  mentioned  by  LaSalle,  ai*e  laid  down.  One  of  them  rep- 
resents Mud  lake,  although  no  name  is  given.  It  is  probable 
that  at  the  locality  of  the  house’  had  always  been  a 

stopping  place.  Marquette  says  they  resolved  to  winter  there, 
Owo  leagues  up  the  river,’  and  speaks  of  ^ their  cabin.’  He 
does  not  say  that  his  men  made  a cabin,  and,  judging  by  the 
way  he  speaks,  we  may  conclude  that  the  cabin  was  already 
there;  perhaps  an  Indian  cabin  or  one  made  by  the  traders. 
Marquette  continues : March  30 — On  the  28th  the  ice  broke 
up  and  stopped  above  us.  The  29th  the  flood  became  so  great 
that  we  scarcely  had  time  to  decamp ; we  put  our  goods  on 
trees  and  endeavored  to  find  a place  to  sleep  on  a knoll;  the 
water  gained  nearly  all  night,  but  freezing  a little  it  fell. 
* * * TPg  q^m  (above  us)  has  just  broken,  * * * 

and,  because  the  water  is  rising,  * * * about  to 

embark  and  continue  our  journey.  * * * 31st.  We  start- 

ed yesterday  and  made  three  leagues  in  (on)*  the  river,  in 
mounting,  without  finding  any  i)ortage;  that  is,  without  find- 
ing any  place  where  it  was  necessary  to  port  (carry)  the  ca- 
noes and  goods.  ‘We  hauled  our  goods  perhaps  about  an  ar- 
pent.’  (A  French  lineal  acre.)  ‘Besides  this  discharge  the 
river  has  another  (that  we  are  to  reach)  by  which  we  are  to  go 
down.’  In  other  words,  the  outflowing  Cliicago  river  had  an- 
other outlet,  through  Mud  lake  and  thence  into  the  Des 
Plaines,  which  is  several  feet  lower  than  Lake  Michigan,  down 
which  they  were  to  go.  Until  the  hand  of  man  had  turned 
their  courses,  the  waters  also  flowed  from  the  swamps  into 
the  great  lake  and  found  their  way  thousands  of  miles  to  the 
northeast,  as  well  as  into  the  Des  Plaines,  and  sought  the 
Gulf,  a thousand  miles  southward,  seemingly  at  will.  * * * 

“There  were  two  lesser  portage  routes — that  by  way  of  the 
Calumet  and  Stony  brook,  sometimes  used  l)y  canoemen  when 
the  swamps  were  full,  and  another  route  u]i  the  north  branch 
of  the  Chicago  river,  past  the  Miami  village  (later  Potta- 
watomy)  at  the  present  site  of  Bowmanville,  and  onward  to 
where  the  river  most  nearly  approaches  the  Des  Plaines.  The 
land  carriage  may  have  passed  the  modern  village  Norwood 
Park.  On  some  of  the  old  maps  now  before  me  the  Chicago 
portage  is  laid  down  and  so  named.  On  others  is  found  sim- 


208 


ply  tlie  words  ^I^ortage  les  Chenes,’  meaning  Portage  of  tlie 
Oaks.  In  tlie  majority  of  eases  where  the  latter  is  found  the 
North  liraneh  is  laid  down,  and  when  only  the  South  branch 
is  laid  down  the  portage  is  usually  called  that  of  Chicago.  The 
Avr iters  of  many  of  the  accounts  knew  the  Des  Plaines  only  as 
the  Chicago,  and  when  those  writers  spoke  of  the  Chicago 
])ortage  they  may  have  referred  to  either.  The  Portage  of 
the  Oaks,  or  that  by  the  lesser  branch  of  our  river,  must  have 
lieen  little  used  because  of  the  shallowness  of  its  water,  par- 
ticularly during  the  summer  months.” 

The  State  Historical  Society  published  with  this  paper  a plate 
giving  a condensed  view  of  the  Government  survey,  also  of  the 
Thevinot  map,  both  of  which  are  in  evidence;  and  upon  the  same 
plate  the  Society  reproduces  also  the  map  by  Surveyor  General 
Hutchins  (whose  description  is  in  evidence,  but  not  his  map),  and 
also  the  maps  by  the  English  Surveyor  John  Andrews  in  1782  and 
by  Governor  Hull  in  1812.  Governor  Hull’s  is  certainly  a public 
document,  of  which  this  court  will  take  notice.  He  was  the  Gov- 
eimor  of  the  territory  northwest  of  the  Ohio  and  in  charge  at  De- 
troit at  the  time  of  the  outbreak  of  the  war  of  1812.  We  insert  this 
])late  at  this  point  on  opposite  page. 


THE  CHICAGO  PORTAQ^. 


as  tlio  wcll- 


Tlio  maps  all  ai>Too  in  ostablisliin^*  ‘^tlio  j)orta,i^(i’’ 
known  line  of  travel  from  the  earliest  times. 

*lt  was  not  attempted  to  make  the  summary  of  early  maps  and  travels  over  this 
portage  exhaustive. 

In  1 Andreas’  /‘History  of  Chicago,”  pp.  38-71,  there  are  reproduced  20  ancient 
maps,  showing  the  portage,  16  of  which  were  not  put  in  evidence. 

A still  larger  number  appear  in  the  volumes  of  Winsor’s  “Narrative  and  Critical 
History  of  America,”  from  which  large  extracts  were  made  at  the  trial. 

Some  of  the  historical  references  to  the  use  of  the  portage  can  be  found  in  E.  G. 
Mas'on’s  “Chapters  from  Illinois  History,”  thus: 

Pages  107-9.  (Use  of  the  portage  by  Tonty  in  September,  1680.) 

Page  121.  (By  LaSalle  in  March,  1681.) 

Page  124.  (By  Tonty,  December  25,  1681.) 

Page  125.  (By  LaSalle,  Jan.  6,  1682.) 

Pages  143-4.  (By  LaSalle  with  his  company  and  an  army  of  4500  Miamis,  1683.) 

Page  145.  (By  two  of  Tonty’s  men  in  June,  1683.) 

Page  157.  (By  Tonty  in  May,  1684.) 

Page  161.  (By  Gov.  LaForest  and  party,  in  June,  1685.) 

Page  178.  (By  a party  of  five  Frenchmen  and  12  savages,  with  Joutel  and  Abbe 
Cavelier,  September,  1687;  and  return  trip  in  October.) 

(This  mentions  their  going  up  stream  by  canoe  in  September;  and  their  finding 
the  water  too  low  when  they  came  back  in  October.  They  then  cached  their  “goods, 
peltries  and  ammunition,”  and  proceeded  downward  on  foot.) 

Page  179.,  (By  two  French  parties:  one  under  Governor  LaForest  in  the  autumn; 
and  the  other  by  two  Frenchmen  in  December,  who  left  their  canoes  at  the  portage 
“because  of  ice  in  the  river.”) 

Pages  181-2.  (By  Allotiez,  with  five  Frenchmen  and  five  savages  March,  1688,  in- 
cluding Joutel.) 

“Joutel  describes  the  situation  of  the  place  called  Checagou,  and  its  river, 
formed  by  the  water  flowing  from  the  prairie,  which,  he  says,  discharges  into 
the  lake,  as  well  as  the  stream  flowing  from  the  other  side  of  that  prairie, 
which  goes  down  the  Illinois  River;  so  that  whether  one  is  ascending  or  descend- 
ing, it  is  necessary  to  make  a portage,  sometimes  a quarter  of  a league,  at 
others  one-half  or  three-quarters  of  a league,  according  as  to  the  water’s  rise 
or  fall.  He  formed  the  same  opinion  which  Joliet  had  come  to,  at  the  same 
place,  that  it  would  be  easy  to  make  a junction  between  the  two  rivers  which 
we  know  as  the  Chicago  and  the  Des  Plaines,  since  the  intervening  ground 
was  flat  and  readily  excavated.  But  Joutel  sayS  that  it  would  require  a con- 
siderable settlement  there  to  justify  such  an  expense.”  (Id.,  182-3.) 

Page  289.  (By  Verville,  in  the  summer  of  1779,  with  a British-Canadian  troupe, 
who  went  down  as  far  as  Peoria  and  burned  the  French  trading  post.) 

Page  290.  (By  two  military  expeditions:  one  a British  incursion  into  Illinois  fro;;? 
Canada,  and  the  other  a party  of  French  and  Indians  under  Langlade,  who  came  up 
from  the  South ; — who  were  seen  by  the  negro  trader  Baptiste  Sable. 

In  the  “Drainage  Channel  and  Waterway,”  a history  of  the  Sanitary  District 
Channel,  prepared  under  the  direction  of  the  Sanitary  District  of  Chicago  and  copy- 
righted by  it.s'  Board  of  Trustees  (by  G.  P.  Brown,  Chicago,  R.  R.  Donnelly  & Sons 
Company,  1894)  yet  other  references  to  early  uses  appear: 

Page  117. — Dec.  1,  1817,  letter  of  Samuel  A.  Storrow,  Judge  Advocate,  U.  S.  A., 
to  Gen.  Brown,  describes  the  portage,  as  well  as  that  of  the  Wisconsin  and  the  Fox. 

Page  119. — A description  of  the  portage  hy  William  Darby,  “an  author  of  promi- 
nence in  the  East,”  is  given  at  some  length. 

Pages  120-1. — An  article  from  the  “St.  Louis  Inquirer,”  published  in  1816,  apropos 
of  the  survey  in  that  year  of  the  grant  by  the  Treaty  of  Black  Partridge  (elsewhere 
referred  to),  describes  the  portage,  and  says  “In  high  water  boats  of  ten  or  a dozen 
tons  pass  without  obstruction.” 

These  facts  were  so  “universally  known  and  of  such  historical  notoriety,”  as  the 
committee  of  Congress  said  in  1825,  that  we  did  not  deem  it  necessary  to  make 
formal  proof  of  every  use  of  the  stream  to  be  found  in  the  books.  We  believe  and 
still  believe  that  those  which  we  formally  put  in  evidence  were  representative  and 
sufficient ; and  we  were  surprised  to  hear  the  trial  court  refer  to  the  whole  in  the 
phrase : 

“Even  though  there  might  have  been  some  slight  use  of  it  down  stream  on 
rare  occasions.” 


212 


Collections  of  the  Illinois  Stole  Jllstoricol  lAhrary,  Vol.  1 (not 
])r()(liiced  at  hearing). 

Edited  and  annotated  hy  IL  \¥.  Beckwith,  President  of  the 
Board  of  Trustees. 

Springfield,  111.,  1903. 

Illinois  Historical  Collections,  Vol.  1,  p.  107.  Chapter  on  La- 
Salle’s Voyage  down  the  Mississippi. 

^‘On  the  27th  of  December,  1681,  M.  de  la  Salle  departed  on 
foot  to  join  M.  de  Tonty,  who  had  preceded  him  with  his  fol- 
lowers and  all  his  equipage  40  leagues  into  the  Miamis  coun- 
try, where  the  ice  on  the  River  Chekagou*  (Note  2),  in  the 
county  of  the  Marcoutens,  had  arrested  his  progress,  and 
where,  when  the  ice  became  stronger,  they  used  sledges  to 
drag  the  baggage,  the  canoes,  and  a wounded  Frenchman, 
through  the  whole  length  of  this  river,  and  on  the  Illinois,  a 
distance  of  70  leagues.” 

^‘(Note  2)*  (Note  hereto).  Later  and  now  called  the  Des 
Plaines.  In  earlier  reference  the  present  so  named  Chicago 
River  w^as  regarded  as  an  inlet  of  the  lake.  And  as  late  as  1812 
the  Des  Plaines  from  the  Chicago  portage  to  the  Illinois  was 
known  as  the  River  Chicago.” 

See  Edwards’  History  of  Illinois,  p.  98. — H.  W.  Beckwith. 

In  ‘‘Wisconsin  Historical  Collections/'  Vol.  16,  page  372  (not 
produced  at  hearing)  is  a note  by  Reuben  G.  Thwaites,  as  follows: 

‘^Of  the  portage  here  mentioned,  that  of  Des  Chesnes  (^‘The 
Oak  Trees”)  was  the  one  from  the  Chicago  River  to  the  Dies 
Plaines — The  earliest  and  best  hnoivn  route  between  LaJce 
Michigan  and  the  Mississippi.  * * * 

^^41  (p.  161.) — Reference  is  here  made  to  the  Illinois  River; 
from  its  upper  waters,  the  traveler  obtained  access  to  liake 
Michigan  by  several  portages.  That  between  its  northern 
fork  (the  Des  Plaines  River)  and  the  Chicago  River  was,  ow- 
ing to  the  southward  current  along  the  west  shore  of  Lake 
Michigan,  the  usual  route  on  the  outward  voyage  from  Mack- 
inac and  other  northern  points.  The  Des  Plaines  might  also 
be  reached  by  a similar  portage  to  the  Calumet  River,  which 
falls  into  Lake  Michigan  at  the  present  South  Chicago.  On 
early  maps  the  Chicago  and  Calumet  Rivers  are  sometimes 
confounded  with  each  other.  On  the  return  trip,  the  voyager 
could  reach  the  great  lake  not  only  by  these  routes,  but  by  a 
third — Ym  the  Kankakee  (the  southern  fork  of  the  Illinois) 
and  a portage  (at  the  present  South  Bend,  Ind.)  to  St.  Joseph 
River,  at  the  S.  E.  corner  of  Lake  Michigan.  This  was  often 
used  when  returning  to  Mackinac,  as  the  lake  current  runs 


2\:] 


iiorilnvard  along  the  east  sliore. — See  Winsor’s  Mississippi 
Rasin,  pp.  24-2(). 

“The  ('iiieago-Des  PJaines  route  involved  a ‘carry’  of  from 
four  to  nine  miles,  according  to  the  season  of  the  year;  in  a 
rainy  spring  season  it  might  not  be  over  a mile;  and  during 
a freshet,  a canoe  might  be  paddled  over  the  entire  route,  with- 
out any  portage.  A canal  between  these  rivers  was  opened  in 
1848,  which  gave  a strong  impetus  to  Chicago’s  early  growth; 
and  the  Government  Drainage  Canal,  now  (December,  1899), 
nearing  completion,  follows  the  same  route,  from  Chicago  to 
Joliet,  a distance  of  36  miles  southwest  to  the  Des  Plaines 
river — a waterway  14  feet  deep,  and  100  feet  wide,  which  will 
not  only  insure  proper  drainage  to  Chicago,  but  greatly  fa- 
cilitate her  commerce. 

The  late  Hon.  John  Wentworth,  some  time  Editor,  Mayor  of 
Chicago,  and  Member  of  Congress  and  builder  of  the  Ogden-Went- 
worth-Nickerson  Ditch,  refers  to  the  subject  in  his  lecture,  ''Earlij 
Chicago,’^'  in  a reprint,  of  which  in  1876  (not  produced  below),  he 
sa^^^s  (p.  7)  : 

“In  1700  there  were  35  of  these  missionary  stations  or 
quasi  military  posts  located  all  the  way  from  Frontenac  (now 
Kingston),  on  Lake  Erie,  via  Detroit,  Mackinaw,  Green  Bay, 
Chicago,  Peoria,  St.  Louis,  etc.,  to  New  Orleans.  About  the 
same  time  there  was  another  route  by  land  via  Fort  Wayne  to 
Chicago. 

“Their  route  out  of  Chicago  was  down  the  north  bank  of 
the  South  Branch  through  Mud  Lake,  then  called  Le  Petit 
Lac,  to  the  Des  Plaines  River,  and  generally  in  the  same  little 
boats  with  which  they  had  passed  over  the  lakes  of  the  East. 
This  route,  partially  interrupted  by  the  construction  of  the 
Illinois  and  Michigan  Canal,  has  been  recently  restored  to  the 
condition  it  occupied  for  so  many  years,  and  the  waters  of 
Lake  Michigan  and  of  the  Desplaines  River  again  mingled, 
after  a few  years  of  unnatural  separation.” 

(This  refers  to  the  Construction  of  the  Ogden- Went  worth 
Ditch.) 

1814. — An  extract  from  Niles'  Weeklg  lledister,  published  at  Bal- 
timore, Aug.  20,  1814.  Under  an  article  entitled  “Resources 
and  Improvements.  Steamboat  Navigation.” 

“Calculation  and  estimate  of  the  internal  navigation  of  the 
United  States,  for  steamboats — compiled  to  shew  the  aston- 
ishing commerce  that  different  parts  of  the  Union  will  have 
with  each  other  to  the  great  benefit  of  the  whole,  and  the  gen- 
eral prosperity;  interspersed  with  geographical  observations 
and  remarks  from  the  best  authors,  assisted  by  some  private 
communications  to  the  editor  from  his  correspondents.” 


])ii^e  417  we  take  the  following  extract: 

‘‘From  Chicago  up  Chicago  River  to  a swamp  or  marsh  at 
the  head  of  the  Illinois,  only  2 miles  distant.  It  is  said  there 
already  is  a passage  for  canoes  through  this  marsh;  and  all 
accountsi  concur  in  stating  that  a comanuini cation  (may  be 
easily  made.  We,  therefore,  consider  it  as  done,  for  it  cer- 
tainly will  be  done  and  at  a small  expense,  as  soon  as  it  is  re- 
quired by  the  settlement  of  the  country.  We  are  not  satis- 
factorily informed  of  the  depth  of  water  in  the  Chicago — it  is 
said  to  atford  a ‘batteaux  n.avigation,’  by  which  we  under- 
stand it  is  free  from  obstructions — from  Lake  Michigan  to  the 
swam])  through  which  we  ])roposed  to  cut  the  canal,  * * * 
“The.  Canal. 

“We  now  enter  one  of  the  most  beautiful  rivers  anywhere, 
clear,  gentle  and  without  rapids,  running  through  a country 
that  some  of  the  French  who  visited  it  called  ‘a  terrestrial 
])a.radise,^  from  the  luxuriancy  of  its  soil  and  productions.  On 
the  shores  of  the  idver  is  a profusion  of  coal — salt  springs  are 
numerous — and  native  grapes  so  abundant  that,  in  1769,  a few 
French  settlers  made  of  them  110  hhds.  of  fine  strong  red  wine. 
It  wall  probably  be  the  wine  .country  of  the  United  States.  It 
is  well  timbered  with  white  and  red  cedar,  mulberry,  pine, 
sugar  maple,  &c.,  and  some  dying  and  medicinal  plants  ai’e 
found. 

“The  country  is  level,  as  may  be  inferred  from  the  gentle- 
ness of  the  river,  but  not  flat ; and  well  adapted  to  all  the 
usual  agriculture  of  the  Middle  States.  On  this  river  is  a 
quarry  of  hurr  stones,  such  as  millstones  are  made  of — llie 
Illinois  near  Michigan  is  divided  into  2 branches,  one  of  which 
called  the  Theakiki  is  a considerable  stream;  we  propose  to 
enter  our  little  canal  at  the  place  where  these  branches  united 
form  the  Illinois.” 

(Article  in  Niles’  Register  is  cited  and  summarized  in  Canal 
History,  which  was  put  in  evidence  by  defendant.  (Abst.,  pp. 
1173-4.) 

The  defendant  there  put  in  evidence : 

(a)  the  “Canal  Report  of  1900,  which  contained  (b)  Willard’s 
Documentary  History  of  the  Canal,  which  in  turn  quotes  (c)  an 
extract  from  AYoodruff’s  “History  of  AAill  County,”  which  in  turn 
summarized  (d)  the  article  in  Niles’  Register.  (And  see  Abst.,  p. 
1910.)) 

In  '^Drake's  Picture  of  Cincinnati  {Natural  and  Statistical  View 
or  Picture  of  Cincimiati,  * by  Daniel  Drake,  Cincinnati. 

Printed  by  Looker  &A¥allace,  1815”)  the  author  (also  of  “Drake’s 


Navigator”)  gives  a statement  of  tlie  points  of  ap[)roximation 
between  waters  of  the  Mississippi  and  tlie  Lakes,  as  follows  (not 
produced  below)  : 

‘‘Canals. — The  points  of  near  approximation  between  the 
waters  of  tlie  Mississippi  and  the  Lakes  appear  to  be  these; 
not  including  those  which  may  exist  in  the  vicinity  of  I^ake 
Superior,  and  have  not  yet  been  examined.  The  first  of  these 
is  in  the  neighborhood  of  Presq’  Isle,  where  the  highest  navi- 
gable point  of  Branch  Creek,  one  of  the  branches  of  the  Alle- 
gheny, is  found  within  12  or  15  miles  of  the  lake.  But 
whether  a canal  could  be  dug  through  the  portage  has  not  been 
publicly  stated.  The  second  is  between  the  Cuyahoga  and  Tus- 
carawa,  one  of  the  upper  streams  of  the  Upper  Aluskingum. 
The  portage  to  this  place  is  not  more  than  a dozen  miles;  and 
so  certain  is  it  that  the  two  waters  could  be  connected  by  a 
canal,  that  in  a law  of  Congress  appropriating  a portion  of 
the  public  lands  to  the  improvement  of  internal  navigation, 
100,000  acres  were  assigned  for  defraying  the  expense  of  this 
project ; but  the  work  has  not  yet  been  commenced.  The  iliird 
is  betwixt  the  St.  Mary  and  Auglaize,  branches  of  the  Mau- 
mee; and  Loramie’s  Creek,  one  of  the  most  navigable  waters 
of  the  Great  Miami.  The  relative  positions  of  these  small 
rivers  may  be  seen  l)y  reference  to  the  map.  The  St.  Mary  is 
remarkably  serpentine,  holding  a general  direction  towards 
the  Northwest,  which  makes  the  voyage  to  the  Lake  circuitous 
and  protracted.  It  is  said  to  have  an  earthen  channel,  with 
low  banks,  and  to  be  deep  and  narrow.  In  the  course  of  the 
year  there  are  generally  five  or  six  floods,  when  its  navigation 
would  be  perfectly  safe,  were  it  not  for  the  bayous  which  are 
then  formed.  Its  junction  with  the  St.  Joseph,  at  Ft.  AUayrie, 
composes  the  Maumee.  The  Auglaize  is  a shorter  river  than 
the  St.  Mary,  and  entering  the  Maumee  60  miles  below  that 
stream,  affords  a much  quickei*  passage  into  the  lake.  It  is  a 
larger  river  than  the  one  first  described;  but  has  a stony  chan- 
nel and  rapid  current.  In  the  opinion  of  gentlemen  who  have 
descended  both,  the  navigation  of  the  Auglaize  is  generally 
not  so  safe  as  that  of  the  St.  Mary,  tho’  at  certain  seasons 
it  affords  more  water.  The  highest  navigable  points  on  these 
rivers  are  not  more  than  20  miles  asunder;  and  between  12 
and  18  from  the  head  of  navigation  in  Loramie’s  Creek.  The 
intervening  tract  is  nearly  level,  and  composed  of  a deep 
stratum  of  loam  and  clay.  Which  of  these  streams  could  be 
more  easily  and  advantageously  connected  with  our  waters  re- 
mains to  be  determined;  as  does  also,  the  more  important 
question,  whether  the  portage  would  afford  sufficient  water  to 
feed  a canal.  The  fourth  connexion  is  between  sources  of  the 
Wabash  and  the  St.  Mary,  8 miles  above  Ft.  Wayne.  When 


every  year  these  rivei-s  ovei'flow  tlie  intervening  lands  to  sncli 
a (lej)tli  that  loaded  boats  pass  over  with  facility.  Of  the 
])j‘aeti('al)ility,  tlierefore,  of  connecting  them  by  a canal,  there 
can  he  no  doubt;  and  in  that  law  of  Oongress  just  quoted,  an 
appropriation  of  land  equal  to  that  for  the  Muskingum  and 
Cuyahoga  Canal,  was  made  for  this.  The  pfth  point  of  inter- 
coninumication  is  between  the  Illinois,  and  the  Chicago,  which 
1 am  informed  are  so  connected  that  in  freshets  l)oats  can  pass 
readily  from  one  to  the  other.  For  encouraging  the  improve- 
ment of  this  navigation,  the  General  Government  have  made 
the  same  appropriation  as  in  the  cases  above  mentioned.  The 
sixth  connecting  waters  are  the  Ousconsing  and  Fox  Rivers. 
The  former  runs  into  the  Mississippi — the  latter  into  Green 
Bay,  an  arm  of  Lake  Michigan.  The  portage  at  this  point  is 
said  to  be  short! 

‘^Mdiich  of  these  connexions  offers  the  greatest  facilities  to 
commercial  increase  cannot  at  this  time  be  determined.  That 
beneath  the  Chicago  and  Illinois  will,  it  is  probable,  be  the 
least  expensive ; but  as  vessels  in  reaching  it  must  pass  through 
the  Straits  of  Michillimackinac,  it  is  not  likely  to  be  used  until 
the  banks  of  Lake  Michigan  and  the  Illinois  shall  become 
thickly  inhabited. ^ ' (Pages  221-223.) 

Danenhower^s 

Chicago  City  Directory  for  1851, 

Chicago, 

Published  by  M.  W.  Danenhower, 

1851, 

in  its  prefatory  Historical  Sketch,  says  (page  6)  : 

^ ‘ The  first  white  men  that  ever  visited  the  ground  on  which 
our  city  stands,  of  which  we  have  a reliable  account,  were  the 
' Jesuit  missionary,  Marquette,  and  his  companion,  Joliet.'  It 
was  on  their  return  from  their  first  expedition  to  the  Missis- 
sippi in  1673.  Having  ascended  the  Illinois  in  canoes,  they 
passed  through  the  slough,  known  to  us  as  Mud  Lake,  lying  be- 
tween the  0 ’Plain  and  the  South  Branch  of  the  Chicago  River, 
and  thence  into  Lake  Michigan.  Some  of  our  citizens  living 
among  us  have  frequently  passed  from  the  waters  that  empty 
themselves  into  the  Mississippi  into  Lake  Michigan  in  this  man- 
ner. (The  damage  done  the  shipping  in  our  harbor  in  the 
spring  of  1819,  in  consequence  of  the  flood,  was  mainly  caused 
by  the  0 ’Plain  changing  its  usual  course  and  emptying  itself 
into  the  waters  of  the  St.  Lawrence  instead  of  those  of  the  Gulf 
of  Mexico.)  Father  Marquette  remained  near  Chicago  about 
two  years,  preaching  to  the  Indians,  who  were  a tribe  of  the 
Miamis.  He  then  started  on  a journey  to  Mackinac,  but  died 
on  the  way.  On  the  banks  of  a small  river  (Mackinac)  within 
the  limits  of  the  present  State  of  Michigan,  he  rested  from 
his  labors.”  (Abst.,  p.  641.) 


ExtrjU'i  IVoin  Miss'isslppl  hy  Justin  Wlrisor,  })ul, 

lishod  ill  l)Ostoii  and  Now  York  in  1895. 


On  jiage  1^4  wo  find  tlio  following  oxtraot: 

‘Vf^oforo  tlio  end  of*  the  17tli  century,  the  [lortages  at  the 
head  of  Lake  Michigan  bad  become  the  liest  known  of  all,  and 
there  had  been  a trading-post  for  sometbing  like  15  years  at 
the  Chicago  River.  What  Herman  Moll,  the  English  cartogra- 
pher, called  the  Mand  carriage  of  Chekakou’  is  described  by 
James  Logan,  in  a communication  which  he  made  in  1718  to 
the  English  Board  of  Trade  as  running  from  the  lake  three 
leagues  up  the  river,  then  a lialf  a league  of  carriage,  then  a 
mile  of  water,  next  a small  carry,  then  two  miles  to  the  Illi- 
nois, and  then  130  leagues  to  the  Mississippi.  But  descriptions 
vary  with  the  season.  It  was  usually  called  a carriage  of  from 
4 to  9 miles,  according  to  the  stage  of  the  water.  In  dry  sea- 
sons it  was  even  farther,  while  in  wet  times  it  might  not  be 
more  than  a mile;  and,  indeed,  when  the  intervening  lands 
were  ‘drowned*,’  it  was  quite  possible  to  pass  in  a canoe  amid 
the  sedges  from  Lake  Michigan  to  the  Des  Plaines,  and  so  to 
the  Illinois  and  Mississippi.”  (Ahst.,  p.  471.) 

In  Rufus  Blanchard’s  Nortlurest  and  Chicago,'’  (Ahst.,  p. 

640),  Volume  I,  ]).  492,  occurs  the  following; 

“With  the  opening  of  the  year  1817,  Cajit.  Bradley  was  still 
busy  in  completing  the  various  appendages  to  Fort  Dearborn, 
such  as  a magazine  made  of  brick,  rescued  from  the  ruins  of 
the  old  fort  factory  building,  etc.  A commodious  parade 
ground  was  also  laid  out,  and  a large  field  immediately  south 
of  the  fort  was  enclosed  with  a rail  fence.  This  was  planted 
with  corn  and  garden  vegetables  for  the  subsistence  of  the 
garrison.  Convenient  gateways  both  on  the  north  and  south 
gave  ingress  and  egress.  The  block  house  itself  was  more 
substantially  built  than  the  original  one,  and  afforded  an  am- 
ple assurance  of  safety  from  Indian  outbreaks.  Oommunica- 
■tions  were  soon  opened  with  the  settlements  of  southern  Illi- 
nois by  way  of  the  south  branch  of  the  Chicago  River,  Mud 
Lake,  the  Des  Plaines  and  Illinois  rivers.  Along  this  channel, 
supplies  of  flour,  meat  and  other  necessaries  were  brought  to 
the  fort  by  means  of  small  row  boats  and  the  short  portage 
from  the  Des  Plaines  River  to  the  Chicago  River.  The  settle- 
ments of  southern  Illinois  had  at  that  time  attained  propor- 
tions sufficient  to  qualify  the  territory  for  a State  in  the  fed- 
eral LTnion,  and  the  next  year.  1818,  isTathaniel  Pope,  delegate 
to  Congress,  applied  for  and  obtained  the  admission  of  Illinois 
as  a sovereign  State.” 


218 


Oil  page  584-5  tlie  following  oeeiirs: 

‘‘From  Mr.  Fzekiel  Morrison,  who  came  to  Chicago  soon 
alter  the  arrival  of  Mi*.  Williams  in  1833,  the  following  has 
lieen  learned  relative  to  the  opening  of  the  mouth  of  the  river 
directly  to  the  lake.  In  1833  work  was  commenced  at  cutting 
through  the  sand  bar  to  straighten  the  Chicago  River.  It  was 
done  under  the  direction  of  Major  Handy,  who  had  charge  of 
'the  governmental  work.  Cribs  were  made,  filled  with  stone 
and  sunk  across  the  main  channel  of  the  river  to  turn  its 
course  across  the  sand  bar  directly  into  the  lake  as  it  now  runs. 
The  next  year,  as  good  fortune  would  have  it,  the  Des  Plaines 
overflowed  the  country  intervening  and  caused  an  unusual  flow 
of  water  through  the  Chicago  river.  Only  a slight  opening  was 
made  in  the  sand  bar,  and  the  accumulated  waters  did  the  rest. 
A steamboat  came  through  the  opening  thus  made  in  the 
spring  (1834).  The  north  pier  was  then  commenced  to  secure 
the  advantage  thus  gained.  Four  hundred  feet  was  made  the 
first  year,  and  its  progress  continued  from  year  to  year  to  its 
present  dimensions.  Imraediaitely  after  the  channel  was  pierced 
through,  'the  wind  commenced  drifting  sand  from  the  north 
bank  into  the  river  and  cribs  had  to  be  set  into  the  bank  to  pre- 
vent the  filling  up  of  the  channel.  * * 

In  “A  Winter  in  the  West.  Letters  Descriptive  of  Chicago  and 
Vicinity,  1833-4,”  by  Charles  Fenno  Hofl’man  (editor  of  the  Knick- 
erbocker Magazine),  reprinted  in  1882  by  the  Fergus  Printing 
Company,  as  “Fergus  Historical  Series,  No.  20”  (Abst.,  p.  643), 
the  distinguished  editor,  writing  on  January  10,  1834,  says: 

“The  town  lies  upon  a dead  level,  along  the  banks  of  a nar- 
row, forked  river,  and  is  spread  over  a wide  extent  of  surface, 
shores  to  the  lake,  wdiile  vessels  of  considerable  draft  of  water 

can,  by  means  of  the  river,  unload  in  the  center  of  the  place. 

* * * * * * * # 

“As  a place  of  business,  its  situation  at  the  head  of  the 
Mississippi  valley  will  make  it  the  New  Orleans  of  the  north; 
and  its  easy  and  close  intercourse  with  the  most  flourishing 
eastern  cities  will  give  it  the  advantage,  as  its  capital  increases, 
of  all  their  improvements  in  the  mode  of  living. 

“There  is  one  improvement  to  be  made,  however,  in  this 
section  of  the  country,  which  will  greatly  influence  the  perma- 
nent value  of  property  in  Chicago.  I allude  to  a canal  from 
the  head  of  Lake  Michigan  to  die  head  of  the  steam  navigation 
on  the  Illinois,  the  route  of  which  has  been  long  since  sur- 
veyed. The  distance  to  be  overcome  is  something  like  90 
miles,  and  when  you  remember  that  the  head  waters  of  the 


1^1!) 


Illinois  rise  within  11  miles  oi'  C^hica^o  River, (*)  and  that  a 
level  |)lain  of  not  more  than'  8 feet  elevation  above  tlie  latter 
is  the  only  infervening  obstaele,  yon  ean  eoneeive  how  easy  it 
would  be  to  drain  Lake  Michigan  into  the  Mississippi  by  this 
route;  boats  of  18  tons  have  actually  passed  over  the  inter- 
vening prairie  at  high  water.  Lake  Michigan,  which  is  sev- 
eral feet  above  Lake  Erie,  would  afford  such  a never-failing 
body  of  water  that  it  would  keep  steamboats  floating  on  the 
route  in  the  dryest  season.  St.  Louis  would  then  be  brought 
comparatively  near  to  New  York;  while  two-thirds  of  the  Mis- 
sissippi valley  would  be  supplied  by  this  route  immediately 
from  the  markets  of  the  latter.  This  canal  is  the  only  remain- 
ing link  wanting  to  complete  the  most  stupendous  chain  of  in- 
land communication  in  the  world.” 

‘Mn  July,  1833,  Giles  Spring  and  myself  went  in  a large 
canoe  from  Chicago  to  Riverside,  passing  through  Mud  Lake. 
At  the  dividing  part  of  the  waters  we  paused,  and  diverted 
ourselves  by  sending  the  water  either  into  the  Gulf  of  Mexico 
or  the  Gulf  of  St.  Lawrence  motion  of  the  paddle.” — John 
Dean  Caton,  Chicago,  April  7,  1882. 


(*)^‘The  Chicago  River  is  about  two  (1)  hundred  and  fifty 
feet  wide,  has  sufficient  depth  of  water  for  lake  vessels  to  where 
it  forks  in  the  center  of  the  town.  The  southern  and  princi- 
pal branch  takes  its  rise  about  six  miles  from  the  Fort'  in  a 
swamp,  which  communicates  also  with  Des  Plaines,  one  of  the 
head  branches  of  the  Illinois.  This  swam)),  which  is  desig- 
nated by  the  Canadian  voyageurs  as  Le  Petit  Lac,  is  navigable 
at  certain  seasons  of  the  year;  it  has  been  frequently  traveled 
by  traders  in  their  pirogues;  and  a bateau  from  St.  Louis, 
loaded  with  provisions  for  the  garrison  at  Chicago,  passed 
through  this  medium,  ])assed  from  the  Mississi)i)')i  into  Lake 
Michigan.  Major  Long  observes,  ujoon  ]iassing  through  this 
marsh  in  a canoe,  AVe  were  delighted  at  l)eholding  for  the 
first  time  a feature  so  interesting  in  itself,  but  which  we  had 
afterward  an  o)>portunity  of  observing  frequently  on  the 
route,  viz.,  a division  of  waters  starting  from  the  same  source 
and  running  in  two  different  directions,  so  as  to  become  the 
feeders  of  streams  that  discharge  themselves  into  the  ocean  at 
immense  distances  apart.  * * * When  we  consider  the 

facts  above  stated,  we  are  irresistibly  led  to  the  conclusion 
that  an  elevation  of  the  lakes  a few  feet  (not  exceeding  10  or 
12)  above  their  present  level  would  cause  them  to  discharge 
their  waters,  partly  at  least,  into  the  Gulf  of  Mexico.  That 
such  a discharge  has  at  one  time  existed,  every  one  conversant 
with  the  nature  of  the  country  must  admit;  and  it  is  equally 
apparent  that  an  expenditure  trifling  in  comparison  to  the  im- 
])ortance  of  the  object  would  again  render  Lake  Michigan  a 
tributary  of  the  Gulf  of  Mexico. 


llarrlcA  Martinean , tlie  (listiTi,i>uis]iecl  essayist,  aiitlior  of  So- 
ciety in  America,”  friend  of  Thomas  Carlyle,  and  well  known 
woman  of  English  letters  of  the  last  century,  describes  her  visit  to 
Chicago  in  1836,  in  a chapter  whicli  was  reprinted  in  the  Fergus 
ilistorical  Series  of  ‘C\nnals  of  Chicago,  No.  9.”  (Chicago.  Fer- 
gus Printing  Company,  244-8  Illinois  street.  1876.  (Ahst.,  p.  644.) 
Mi  ss  Martineau  drove  from  Michigan  City  to  Chicago,  and  then  to 
Mount  ftoliet.  Among  her  references  to  the  river  are  the  follow- 
ing: 

P.  41.  ‘‘A  little  further  we  came  to  the  Eiver  Aux  Plaines, 
spelled  on  a sign  board  ‘0 ’Plain.’  The  ferry  here  is  a monop- 
oly, and  the  public  suffers  accordingly.  There  is  only  one  small 
flat  boat  for  the  service  of  the  concourse  of  people  now  pouring 
into  the  prairies.  Though  we  happened  to  arrive  nearly  first 
of  the  crowd  of  today,  we  were  detained  on  the  bank  above 
an  hour ; and  then'  our  houses  went  over  at  two  crossings,  and 
the  wagon  and  ourselves  at  the  third.  It  was  a pretty  scene, 
if  we  had  not  been  in  a hurry;  the  country  wagons  and  teams 
in  the  wood  by  the  'side  of  the  quiet,  clear  river ; and  the  oxen 
swimming  over,  yoked,  with  only  their  patient  faces  visible 
above  the  surface. 

42.  ‘^As  we  proceeded  the  scenery  became  more  and  more 
like  what  all  travelers  compare  it  to — a boundless  English 
park.  The  grass  was  wilder,  the  occasional  foot  path  not  so 
trim,  and  the  trees  less  majestic;  but  no  park  ever  displayed 
anything  equal  to  the  grouping  of  the  trees  within  the  wind- 
ings of  the  blue,  framing  the  Eiver  Aux  Plaines. 

43.  ^‘We  actually  had  to  cross  the  rushing,  deep  river  on 
a line  of  single  planks,  by  dim  moonlight,  at  past  eleven  at 
night.  The  great  anxiety  was  about  Charley;  but  between 
his  father  and  the  guide,  he  managed  very  well.  This  guide 
would  accept  nothing  but  thanks.  He  Midn’t  calculate  to  take 
any  pay.  ’ 

44.  ‘‘Not  far  from  the  Mount  was  a log  house,  where  the 
rest  of  the  party  went  in  to  dry  their  feet,  after  having  stood 
around  in  the  wet  grass.  I remained  outside  watching  the 
light  showers,  shifting  into  partial  sunlight,  from  clump  to 
level  and  from  reach  to  reach  of  the  brimming,  winding 
river.  ’ ’ 

The  defendant,  desiring  to  appropriate  the  river  to  its  private 
uses,  lends  a ready  ear  to  every  allusion  in  literature  to  the  diffi- 
culties in  the  navigation  of  a river.  It  found  in  the  letter  of  La 
Salle  of  September,  1680  (Abst.,  p.  1640  ef  seq.)  criticisms  of  the 


22\ 


river.  In  lliis  letter  he  deserihes  a joiiriK^y  vvliieli  lie  made  ^lanhi 
l^iid  to  INIareh  L4tli,  when,  as  he  says: 

“The  river  the  next  day  was  covered  with  ice  for  about 
four  leagues  below  the  lake  (Peoria  Lake^  some  of  it  being 
too  thin  to  walk  on  and  some  it  too  thick  to  be  able  to  break 
it  and  get  through  bark  canoes.  We  then  |)assed  that  day, 
the  second  of  March,  carrying  everything  by  way  of  the  land 
in  the  snow  up  to  the  middle  of  our  legs.  * * The  third 

we  navigated  in  a canoe  along  the  river,  which  we  found 
frozen  in  seven  or  eight  places,  * * and  were  obliged 

to  take  a circuit  of  almost  two  leagues  to  drag  our  canoe 
through  some  frozen  marshes,  at  the  end  of  which  the  river 
was  free.” 

In  the  two  pages  descriptive  of  this  journey,  the  words  “win- 
ter,” “ice,”  “snow,”  “frozen”  occur  twenty-three  times  (Abst., 
pp.  1642-3-4),  in  which  he  says: 

“We  lost  all  hope  of  being  able  to  send  provision  to  the  fort 
for  a long  time,  not  only  because  there  teas  no  appearance  of 
the  navigation  being  open  soon,  but  because  there  was  still 
less  hope  that  some  savages  would  arrive  in  the  village  to  sell 
us  some.”  (Abst.,  p.  1642.) 

In  this  letter  he  proceeds  to  say. 

“You  complain  that  in  my  letters  I do  not  tell  you  any- 
thing special  of  the  Illinois  and  of  the  riches  to  be  found 
there.  * * * The  l)arque  (Griffin)  was  finished  the  follow- 

ing month  of  May,  and  sailed  the  7th  of  August,  1679,  and 
has  been  lost  on  coming  back  from  the  Lake  of  the  Illinois 
where  I had  taken  it  fortunately.  * * * 

“First  that  it  only  got  lost  in  coming  back  * * * py  in. 

evitable  effort  of  the  storm  which  became  terrible  two  days 
after  its  de])arture  and  lasted  five  days; 

“Second,  that  there  was  neither  any  lack  of  capacity  in  the 
]3ilot  who  had  held  this  ])osition  in  the  greatest  vessels  of 
Canada  and  of  the  Islands,  nor  of  sailors,  the  custom  being 
to  put  no  more  than  six  on  a boat  of  fifty  tons. 

“Third,  the  season  was  not  too  much  advanced,  navigation 
continuing  ordinarily  until  the  end  of  November,  and  it  was 
wrecked  on  the  20th  of  September; 

“Fourth,  I think  it  is  im})ossible  to  do  what  Monsieur  L’ab])e 
Bernou  asked  me,  to  send  some  one  to  learn  if  the  lakes  and 
the  great  ilver  were  navigable  otherwise  than  by  baixjue, 
which  must  take  a road  very  different  from  that  canoes  take, 
which  are  obliged  to  always  go  along  as  near  the  shore  as  they 
can  in  order  to  land  at  the  first  wind  of  which  they  could  not 
stand  the  least  s(]uall  in  the  middle  of  these  lakes  forty  or 
fifty  leagues  large,  and  the  banpies  could  not  keep  too  near  the 


middle  of  the  watei-  in  oi-der  not  to  he  thrown  on  the  siiore, 
so  that  it  is  neeessary  to  go  in  a harcjne  to  discover  the 
difficulties  of  navigation,  or  it  will  be  necessary  to  blame  those 
who  have  crossed  the  unknown  sea  for  not  having  tried  them 
with  launches  in  order  not  to  risk  their  l)oats. 

‘‘Fifth,  if  that  had  been  possible  it  would  have  taken  three 
years  to  go  around  the  lakes  wliich  is  more  than  fifteen  hun- 
dred leagues  and  where  the  least  wind  sometimes  holds  a 
canoe  8,  10,  15,  20  days  in  a ])lace  without  advancing. 

“Sixth,  this  l)arque  was  absolutely  necessary  and  no  one  can 
get  along  without  it  for  this  enterprise. 

“Seventh,  for  the  transportation  of  big  loads,  as  rigging  up 
and  ap])aratus  for  the  boat  that  I .had  ordered  to  be  made 
in  the  Kiver  of  the  Illinois,  that  being  impossible  in  a canoe, 
for  although  they  have  used  a canoe  to  bring  to  the  Sault 
of  the  Rapids  the  api)aratus  of  the  barques  that  I have  con- 
structed on  it,  it  does  not  follow  that  one  could  do  it  for  this 
boat  in  these  lakes,  because  I am  the  only  one  who  succeeded 
along  the  rapids  against  the  hope  of  all  those  who  saw  me 
undertake  it,  but  I did  not  have  two  of  the  difficulties  which 
are  insurmountable  in  the  lakes : 

“One,  the  big  winds  which  oblige  me  to  land  sometimes  in 
difficult  and  steep  places  and  in  the  waves  which  come  up  all 
of  a sudden,  so  that  it  would  be  impossible  to  load  these 
canoes  and  to  prevent  them  from  breaking,  if,  as  three  men  at 
the  most  conduct  them,  two  of  them  are  obliged  in  this  hap- 
pening to  hold  the  canoes  while  the  other  carries  the  pack- 
ages on  land,  the  third  one  happened  to  encounter  loads  that 
he  could  not  move  such  as  cables,  anchors,  and  iron  for  the 
rudder  would  be. 

“The  second  difficulty  comes  from  the  length  of  these  voy- 
ages in  canoe  by  these  lakes  on  account  of  their  size,  which  give 
rise  to  some  frequent  storms  which  stop  the  canoes,  that  are 
never  found  in  the  rapids  ivhere  one  is  never  inconvenienced 
hy  the  ivinds  and  which  stretch  only  forty  leagues; 

“Second,  concerning  first,  pecans,  and  originals,  if  there 
were  some,  and  that  you  wish  to  have  some  returns,  as  you, 
notify  me  by  way  of  Canada,  it  is  impossible  for  that  to  use 
canoes  in  which  you  get  everything  in  three  times  only  sixty 
oxen  skins  at  the  most  by  these  lakes; 

“Third,  for  the  safety  of  the  effects  that  you  cannot  prevent 
from  being  at  the  discretion  of  the  teamsters,  the  waves  and 
the  rain  wetting  often,  what  there  is  in  it,  that  oblige  one  to 
remove  to  a dry  place  from  time  to  time  what  is  in  the  canoe 
where  nothing  is  enclosed  and  covered,  and  without  mention- 
ing the  fact  that  one  cannot  do  anything  secretly; 

“Fourth,  because  having  to  lead  several  men  incapable  of 
going  in  a canoe,  as  some  of  the  new  ones  that  have  come  from 
France,  the  expense  of  their  passage  would  be  great  for  this 


ronsoii,  not  l)eing  any  toainster  who  vvould  (Jrive  thorn 

loss  than  two  or  throo  hundi-od  })Oiinds  a man; 

“Firth,  tor  tho  safoty  of  tho  nion  and  of  tho  offoots  whioli 
would  bo  much  more  exposed  in  canoes,  not  only  on  account 
of  tho  [)oril  of  the  waters  whicli  is  continuous,  but  to  1)0  killed 
l)y  the  savages  as  it  lia{)pened  to  two  men  of  the  Jesuits  last 
autumn,  and  to  suffer  hunger,  it  being  impossible  to  carry 
enough  food  in  some  canoes  for  a long  trip  and  very  diffi- 
(uilt  to  supply  by  hunting  for  a great  number  of  people. 
^ ^ * j ^rili  not  have  any  trouble  in  giving  you  afl  the  in- 

formation that  you  will  ask  me  as  you  will  not  have  any 
trouble  to  answer  me  the  things  which  I will  ask  you  to  ex- 
plain; hut  also  I must  expect  that  you  will  not  believe  every- 
thing, and  that  I will  not  have  to  prove  to  you  that  I am  not 
crazy.  It  is  the  first  thing  that  you  must  have  observed  be- 
fore you  did  business  with  me,  and  for  the  long  time  that  we 
have  seen  each  other  you  have  been  able  to  know  me,  or  I 

must  have  good  spells  which  last  a long  time. 

* # * # * 

After  all.  Sir,  it  is  only  a little  delay  that  you  must  not 
find  strange  after  such  great  adversities  which  have  not  hap- 
pened because  of  my  fault.  * * * \ offer  you  for  the  past 

to  send  to  you  as  soon  as  I can  the  money  that  you  have 
advanced,  as  well  what  I have  received  as  what  has  been 
lost;  and  the  following  year  I will  send  you  fifty  per  cent, 
profit,  on  the  condition  that  after  having  received  the  prin- 
cipal of  1682  you  will  send  me  in  1683  by  the  first  boat  the 
fulfilment  of  the  memorandum  that  I will  furnish  you  at 
your  risk  as  far  as  Quebec;  that  in  1683  1 will  send  you  back 
the  fifty  ])er  cent,  of  the  ])rincipal  that  you  have  already  fur- 
nished, with  a memorandum  that  you  will  fulfill  in  1681, 
which  will  come  also  at  your  risk  by  the  first  boat  where  1 will 
l)e  obliged  to  keep  ready  for  you  the  same  })rofit  for  the 
part  of  the  profit  that  you  can  claim  from  the  Illinois;  and  thus 
consecutively  every  year  to  send  you  the  amount  of  the  mem- 
orandum that  you  have  furnished  the  year  before,  the  profit 
payable  in  Quebec  in  furs  at  the  current  ))rice  or  in  a draft 
on  farmers  on  the  condition  that  the  ]u*ices  of  the  things 
will  be  in  cash  in  France  during  the  ten  years  of  our  treaty.” 

This  is  the  letter  from  which  the  defendant  offered  La  Salle’s 
comment  on  Joliet,  saying: 

Having  finished  my  caches,  1 left  the  28th  of  De(‘eniher 
and  went  on  foot  to  join  the  Sieuer  de  Tonty,  which  I did 
on  the  7th  of  January,  the  snows  having  detained  me  some 
days  at  the  portage  of  Chicago.  There  is  an  isthmus  of  land 
at  41  degrees,  50  minutes  north  latitude,  at  the  west  of  the 
Illinois  Lake  which  is  reached  by  a channel  formed  by  the 


junction  of  several  rivulets  or  meadow  ditches.  It  is  navi- 
gable for  about  two  leagues,  to  the  edge  of  the  prairie  a 
(juarter  of  a league  westward.  There  is  a little  Jake  divided 
by  a causeway  made  by  the  beavers,  about  a league  and  a 
half  long,  from  wliicb  runs  a stream,  which  after  winding 
about  a lialf  a league  tbrougli  tlie  ruslies  empties  into  the 
river  of  (diicago,  and  tlience  into  that  of  tlie  Illinois.  This 
lake  is  filled  with  heavy  summer  rains,  or  spring  freshets, 
and  discharges  also  into  the  clianel  wliich  leads  to  the  lake  of 
the  Illinois,  the  level  of  which  is  7 feet  lower  than  the  prairie 
on  which  the  fake  is. 

“The  river  of  Chicago  does  the  same  thing  in  the  spring 
when  its  channel  is  full.  It  empties  a part  of  its  waters  by 
this  little  lake  into  those  of  the  Illinois,  and  at  this  season 
Joliet  says,  forms  in  the  summertime  a little  channel  for  a 
quarter  of  a league  from  this  lake,  to  the  basin  which  leads  to 
that  of  the  Illinois  by  which  vessels  can  enter  the  Chicago 
and  descend  to  the  sea. 

“This  may  very  well  happen  in  the  spring,  but  not  in  the 
summer  because  there  is  no  water  at  all  in  the  river  as  far 
as  Ft.  St.  Louis,  where  the  Illinois  begins  to  be  navigable  at 
this  season,  whence  it  continues  deep  to  the  sea.  It  is  true 
that  there  is  another  difficulty  which  the  proposed  ditch  would 
not  remedy,  which  is,  that  the  lake  of  the  Illinois  always 
forms  a sand  bar  at  the  mouth  of  the  channel  which  leads 
to  it,  and  I greatly  doubt  notwithstanding  what  is  said,  that 
it  could  be  cleared  or  swept  away  by  the  force  of  the  cur- 
rent of  the  Chicago  since  much  greater  in  the  same  lake  has 
not  removed  it. 

“Moreover  the  utility  of  it  would  be  inconsiderable,  because 
I doubt  even  if  it  should  be  a complete  success  whether  a 
vessel  could  resist  the  great  freshets  caused  by  the  currents 
in  Chicago  in  the  spring,  which  are  much  heavier  than  these 
of  the  Lhone.  Moreover  it  would  only  be  serviceable  for  a 
short  time,  at  most  for  fifteen  or  twenty  days  each  year,  after 
which  there  would  be  no  more  water.  What  confirms  me  in 
the  opinion  that  the  Chicago  could  not  clear  the  mouth  of 
the  channel  is  that  when  the  lake  is  full  of  ice,  the  most 
navigable  mouths  are  blocked  at  this  period  and  when  the 
ice  is  melted,  there  is  no  more  water  in  the  Chicago  to  pre- 
vent the  mouth  from  filling  up  with  sand.  Nor  should  I have 
made  any  mention  of  this  communication  if  Joliet  had  not 
proposed  it  without  regard  to  its  difficulties.  * * * 

“The  channel  between  Lake  Erie  and  Lake  Huron  pre- 
sents a great  difficulty  because  of  its  great  current  which 
cannot  be  surmounted  except  by  a strong,  stern  wind,  and 
because  there  are  places  between  where  there  is  only  a width 
of  four  feet  of  water  so  that  vessels  capable  of  supporting 
the  storms  of  the  lakes  could  scarcely  pass  that  water  be- 


('aus(‘  of  11k‘  ol*  their  situation  oii  the  inoiintains  of 

Nia4»'ara,  or  the  nearness  of  other  inonntains  hy  which)  llu^y 
are  almost  wliolly  surrounded,  ddie  aiitnnm  and  sf)ring  storms 
are  so  turious,  so  sudden  and  so  lon^-,  particularly  fuj-ious 
from  the  northwest  and  northeast,  and  from  the  southeast  in 
the  spring,  that  sometimes  for  three  or  four  days,  it  would  })e 
impossible  to  carry  sail  or  keep  clear  of  land,  which  is  never 
more  than  15  or  l(i  leagues  distant,  the  lakes  being  no  more 
than  30  leagues  wide,  and  because  if  this  communic'ation 
should  be  insisted  upon  by  means  of  ])arks,  the  lakes  could 
not  be  navigable  before  the  middle  of  April,  and  sometimes 
even  later  because  of  the  ice  and  winter  at  this  season,  nor 
for  the  rest  of  the  year  is  the  Chicago  navigable  even  for 
canoes  unless  after  a storm. 

“The  waters  being  always  low  in  the  month  of  March,  it 
would  be  easiei:  ^to  effect  the  transportation  from  Fort  St. 
Louis  to  the  lakes  by  land  by  making  use  of  horses,  which  it 

is  easy  to  have,  there  being  numbers  among  the  savages.  * 
# * * 

“The  route  by  the  lakes  presents  much  greater  difficulty, 
which  Joliet  apparently  ignored  and  partly  concealed.  Many 
more  establishments  (posts)  are  necessary.  One  is  needed 
at  the  foot  of  the  falls  where  Lake  Erie  discharges  into  Lake 
Ontario,  and  where  the  navigation  is  interrupted  foi*  13 
leagues.  * * * 

“And  another  one  is  needed  at  the  foot  of  the  lakes  of 
the  Illinois,  where  navigation  stops  at  a place  named  Chi- 
cago, in  order  to  repack  the  goods  brought  there  in  barks 
and  transport  them  to  canoes  about  2 leagues  away,  from 
there  canoes  only  can  navigate  to  the  village  of  the  Illinois, 
a distance  of  40  leagues,  notwithstanding  Joliet  says  that 
there  is  only  a quarter  of  a league  interruption  of  naviga.- 
tion.  Still  another  establishment  is  needed  on  the  Illinois 
where  barks  can  navigate.”  (Abst.,  pp.  969-70-71.) 

When  these  passages  are  read  together  it  is  plain  that  La  Salle’s 
entire  experience  with  the  river  was  under  the  most  unfavorable 
conditions,  and  that  lie  found  the  lakes,  the  Lake  of  the  Illinois, 
the  channel  between  Lake  Erie  and  Lake  Huron,  the  Chicago 
River,  and  the  Divine  River,  all  of  them,  not  navigable,  except 
under  special  circumstances.  His  letter  is,  in  substance,  an  a])ol- 
ogy  to  his  creditor  for  not  being  able  to  pay  him,  an  explanation 
of  the  great  difficulties  which  he  had  encountered,  the  offering  of 
new  commercial  paper,  and  accounts  and  profits  in  preceding 
years,  and  plainly  forecasting  the  abandonment  of  Fort  Creve 


22(1 


Coeur  at  Peoria,  and  tlie  develo])ment  of  Fort  Miami  at  St.  Jo- 
seph. 

As  to  La  Salle’s  relations  witli  Marquette  and  Joliet,  they 
were  explained  by  Prof.  Alvord  to  be  those  of  intense  rivalry.  He 
said : 

‘bLa  Salle  was  a cultured  man  with  a good  power  of  ob- 
servation but  extremely  prejudiced  against  the  Jesuits,  so 
much  so  that  be  would  be  likely  to  disparage  anything  that 
the  Jesuits  had  done.  * * * The  Jesuits  would  always 

disparage  La  Salle’s  explorations,  and  La  Salle  the  Jesuits’.” 
(Abst.,  pju  751  2.) 

In  Chambers’  Encyclopedia,  Vol.  8,  pp.  689-91,  article  ^H^a 
Salle”  (Abst.,  pp.  1619-1653),  a comprehensive  sketch  of  La  Salle’s 
life  is  given,  in  which  the  following  occurs: 

^‘Here  he  met  Joliet,  afterwards  with  Marquette,  discov- 
erer of  the  upper  Mississippi,  returning  from  a futile  search 
for  copper  mines  on  Lake  Superior.  Prom  him  he  pro- 
cured a map  of  the  lake  country  which  he  had  visited.  Prom 
this  point  the  records  of  La  Salle’s  movements  are  not  full. 

About  this  time  (1675)  a bitter  feeling  between  La  Salle 
and  the  Jesuits  threatened  to  endanger  the  success  of  his 
enterprises.  Evidently  a man  of  settled  religious  belief  in  the 
Catholic  faith,  he  was  at  the  same  time  advanced  in  his  views 
of  what  tends  to  a people’s  development,  and  of  the  con- 
trolling power  of  commerce.  He  saw  little  advantage  to 
France  or  the  Indians  in  missions  merely  to  induce  an  out- 
ward worship  of  the  cross  by  the  savages.  The  Jesuits  could 
retain  their  control  over  the  Indians  only  by  excluding  traders 
from  among  them.  They  were  therefore  enemies  of  any 
trading  around  their  distant  missions  which  they  could  not 
control  for  the  support  of  their  order.  The  profits  derived 
from  the  fur  trade  under  their  direction  at  the  missions  was 
an  important  part  of  their  revenue.  Thus  a monopoly  of  trade 
as  well  as  of  religion  grew  up  in  their  hands,  and  divided 
Canada  into  two  parties.  The  imperious  and  clear-headed 
Frontenac  and  La  Salle,  with  the  power  of  the  temporal 
government,  and  one  branch  of  the  church,  were  on  one  side, 
and  the  solid  Jesuit  power  was  on  the  other.  With  the  latter 
were  numerous  traders  who  thrived  by  their  favor  at  the  mis- 
sions. La  Salle  was  considered  the  head  of  the  former  party, 
and  no  means  were  spared  to  break  his  influence  and  injure  his 
good  name.  The  Jesuits  procured  an  order  from  the  supreme 
council  prohibiting  traders  from  going  into  the  country  of  tlie 
Indians  to  trade,  thus  giving  their  missions  the  monopoly. 


227 


La  Salle  cireiiiiiveiited  lliis  by  indueiri^i^  a large  seltlerrierit 
ol*  Iroquois  around  liis  fort,  who  could  range  the  country 
for  liini  as  hunters  and  trappers  witliout  })eing  considered 
traders.  Besides  a new  fort  and  barracks,  he  built  a flouring 
mill,  a bakery,  and  groups  of  houses  for  French  settlers.  Ills 
fort  was  surrounded  by  Indian  villages.  Absolute  lord  of  the 
colony,  he  seemed  to  lay  the  foundation  of  his  own  for- 
tune by  multiplying  the  means  and  incentives  to  industry  for 
others.  * ^ ^ 

‘^La  Salle  now  continued  his  voyage  in  canoes  along  the 
western  shore  of  Lake  Michigan.  Storms  kept  them  company. 
Through  weeks  of  constant  danger  in  the  surf  that  lashed 
the  coast,  they  reached  the  hay  of  Milwaukee.  South  of 
that,  fairer  weather,  game,  and  fruit  welcomed  them;  and 
reaching  the  niouth  of  the  St.  Joseph  river  he  erected  fort 
Miamis.  December  3,  1679,  with  a party  of  32  men  and  8 canoes 
they  ascended  the  St.  Joseph  to  where  South  Bend  now  is, 
were  shown  trails  leading  to  the  Kankakee,  and  carrying  their 
canoes  over  the  portage,  launched  them  in  a stream  little  more 
than  their  own  widfh,  but  growing  hourly  in  volume  as  they 
floated  down.’’ 

Parkman  says  of  La  Salle  (Parkman’s  ‘‘La  Salle,”  page  2): 

“At  'an  early  age,  it  is  said,  he  became  connected  with 
the  Jesuits;  and,  though  doubt  has  been  expressed  of  the 
statement,  it  is  probably  true.” 

Page  106: 

“He  is  stated  to  have  declared  that  Louis  Joliet  was  an 
imposter,  and  a donne  of  the  Jesuits, — that  is,  a man  who 
worked  for  them  without  pay.” 

Foot  note: 

“This  agrees  with  expressions  used  by  La  Salle  in  a memoir 
addressed  by  hjm  to  Frontenac  in  November,  1680.  In  this, 
he  intimates  his  belief  that  Joliet  went  but  little  below  the 
mouth  of  the  Illinois,  thus  doing  flagrant  injustice  to  that 
brave  explorer.”  (Abst.,  pp.  1647-8-9.) 

The  conclusion  is  irresistible  that  La  Salle  became  interested 
in  his  Fort  Miamis  at  the  mouth  of  the  St.  Joseph  and  entertained 
all  the  jealousy  of  Chicago  ^which  afterwards  characterized  some 
other  communities. 

Again,  he  had  great  hostility  for  the  Jesuits,  both  because  of 
the  early  estrangement  and  also  before-hand  with  the  Indians  and 
had  the  fur  trade  which  he  sought  to  acquire. 

Finally,  he  was  imperious,  was  embittered  by  many  disappoint- 


iiieiits,  explaining  liis  failure  in  Illinois  in  the  manner  in  which 
we  have  seen;  and  he  was  frecpiently  s})oken  of  as  of  unsound 
mind. 

AVinsor  says : 

“There  is  not  a little  in  all  this  to  point  to  a state  of  mental 
unsoundness  in  La  Salle.”  (Abst.,  p.  16()5.) 

hi  all  this  there  is  am])le  explanation  of  the  fact  that  La  Salle 
differed  from  the  other  travelers  and  explorers  in  his  accounts 
of  the  navigation  of  the  lakes  and  the  rivers  of  the  North- 
west. 


PHYSICAL  CHARACTERTSTTCS. 


1.  IMMEDIATE  REACH  OF  RIVER  MOST  INVOLVED. 

The  reach  of  the  river  with  which  we  are  now  most  concerned 
extends  from  Dam  No.  1,  a State  dam  in  Joliet,  Will  County,  to  the 
confluence  with  the  Kankakee,  in  Grundy  County,  a distance  of  16 
miles. 

The  Des  Plaines  River  rises  in  the  southeast  corner  of  Wiscon- 
sin, about  10  miles  west  of  Lake  Michigan,  and  flows  southwardly 
until  it  reaches  a point  in  Cook  County  about  11  miles  west  of  Chi- 
cago, when  it  turns  and  runs  southwest  a distance  of  about  40  miles 
to  the  northeast  corner  of  Grundy  County,  where  is  unites  with  the 
Kankakee. 

About  three  miles  above  this  junction  it  receives  the  Du  Page 
River.  The  Illinois  River  is  correctly  said  to  be  formed  by  all 
three  of  these  streams;  and  according  to  Schoolcraft  (as  (pioted 
by  the  defendants’  witness  McCowan,  the  Illinois  River  is  said 
to  begin  at  the  mouth  of  the  Du  Page.  ( Abst.,  p.  625.)  Some  of  the 
earlier  books  call  the  Des  Plaines  the  Upper  Illinois ; and  in  some 
of  the  Government  Reports  upon  the  improvement  of  the  Illinois 
River  the  Des  Plaines  is  properly  treated  as  part  of  the  Illinois. 
It  is  a river,  in  general,  which  from  Joliet  to  the  mouth  is  about 
400  to  600  feet  wide  and  above  Joliet  is  ordinarily  about  200  feet 
wide,  with  well  defined  banks  which  sometimes  overhang  from  8 to 
25  feet,  and  occasionally,  in  the  Des  Plaines  above  Lockport,  the 
stream  passes  through  rolling  prairie  where  the  descent  from  the 
ground  level  to  the  water  level  is  so  gradual  that  in  high  water  the 
stream  floods  the  entire  valley  for  miles  in  width. 

‘‘This  river  for  13  or  14  miles  has  very  little  descent,  the 
current  at  low  water  being  scarcely  perceptible  and  the  land 
so  low  along  its  borders  as  to  overflow  by  verv  slight  rise  of 
water.” 

(Engineer  Gooding’s  Rep.,  Dec.  19,  1836;  reprinted  in 
Canal  Comrs.  Rep.  for  1900,  p.  121.)  (Abst.,  p.  1875.) 


And  occasionally  tlie  stream  broadens  out  into  bodies  like  Lake 
Joliet  (below  Joliet),  a deep  gorge  5 miles  long  and  from  1,000 
feet  to  a (luarter  of  a mile  wide.  Just  at  tlie  foot  of  Lake  Joliet  it 
is  divided  into  two  channels  by  Treats  Island,  4,500  feet  long. 
Tlie  right  hand  channel  is  about  527  feet  wide  and  the  left  hand 
channel  about  276  feet  wide,  at  the  widest  point;  at  the  narrowest 
]K)int,  about  145  and  128  feet,  respectively.  (Abst.,  ]).  871.) 

At  this  time  the  Chicago  Drainage  Canal  built  by  the  Sanitary 
District  of  Chicago  connects  the  Chicago  Eiver,  from  a point  in  the 
city  limits  of  Chicago,  with  the  Des  Plaines  River  in  Joliet,  by  a 
channel  from  162  to  300  feet  wide  at  the  surface,  from  160  to  300 
feet  wide  at  the  bottom  and  24  feet  deep,  and  through  which,  since 
the  17th  day  of  January,  1900,  a stream  of  water  amounting  to 
300,000  cubic  feet  per  minute  has  been  flowing  continuously  (except- 
ing when  the  controlling  works  of  the  Sanitary  District  have  shut 
down  or  reduced  the  volume  of  the  stream).  (Abst.,  p.  818.)  This 
body  of  water  was  added  to  the  Des  Plaines  by  the  expenditure  of 
flfty-four  and  a half  millions  of  public  money  raised  by  taxation, 
for  the  primary  purpose  of  effecting  sanitation  for  Chicago,  and 
the  incidental  purpose,  declared  by  the  Legislature  by  resolution  at 
the  time  of  the  creation  of  the  Sanitary  District,  in  the  following 
form : 

‘ATheeeas,  It  is  contemplated  to  increase  the  volume 
from  Lake  Michigan  to  300,000  cubic  feet  per  minute  within  a 
few  years  and  ultimately  to  add  600,000  cubic  feet  or  more, 
thus  enabling  a large  depth  for  navigation  to  be  obtained  by  an 
improved  channel,  and  that  -said  channel  will  be  self-sustaining 
and  self-improving  and  will  discharge  flood  waters  more  read- 
ily, thus  benefitting  the  bordering  lands  and  increasing  the 
healthfulness  of  the  valley. 

‘AVheeeas,  Works  now  projected  by  the  City  of  Chicago 
will  form  part  of  a water-way  of  large  proportions  from  Lake 
Michigan  via  the  Dies  Plaines  and  Illinois  RWers  to  the  Mis- 
sissippi River,  of  which  the  dams  and  locks  upon  the  alluvial 
section  of  the  Illinois  River  can  form  no  part  and  which,  if 
allowed  to  remain,  will  increase  the  overflow  and  be  detrimen- 
tal to  the  welfare  of  the  Illinois  Amlley  and  the  interests  of  the 
State.  Therefore  be  it 

Resolved,  hy  the  Senate,  the  House  of  Representatives 
concu rring  herein. 

‘M.  That  it  is  the  policy  of  the  State  of  Illinois  to  procure 
the  construction  of  a water-way  of  the  greatest  practicable 


depth  and  iiset*iilness  for  navigation  from  Lake  Mi(diigaTi  via 
tile  Des  Plaines  and  Illinois  Rivers  to  tlie  Mississippi  River, 
and  to  eneoiirage  the  (*onstruetion  of  feeders  thereto  of  like 
[iroportions  and  nseFulness.” 

(Joint  Resolution,  May  27,  28,  1889,  Laws  of  1889,  pp. 

375-6.) 

And  by  the  act  of  the  same  date  authorizing  the  construction  of 
the  Drainage  Canal,  it  was  provided  by  Section  24  that  said 
stream  when  constructed  and  the  water  turned  therein  should  be 
a navigable  stream  (Act  of  May  28,  1889,  Sec.  24,  Laws  of  1889,  p. 
135.) 

Depth. — This  body  of  water  is  now  flowing  in  the  Des  Plaines 
River  and  gives  it  at  all  seasons  of  the  year  a minimum  depth  of 
34  to  4 feet.  (Abst.,  p.  654.) 

Current. — The  current  in  this  reach,  as  reported  by  the  Gov- 
ernment surveyors  in  1905,  was  taken  at  four  places,  viz. : At  the 
Kankakee  Cut-off  about  a mile  above  the  confluence,  where  it  was 
2.5  an  hour;  again,  a quarter  of  a mile  below  Treats  Island,  where 
it  was  2.1  miles  per  hour;  again,  just  at  the  entrance  to  Lake 
Joliet,  where  it  was  2.3  miles  per  hour;  and  again  at  the  Jefferson 
Street  Bridge  in  Joliet,  where  it  was  computed  at  7.4  miles  per 
hour.  In  the  reach  of  Lake  Joliet  itself,  about  5 miles  long,  the 
current  is  less  than  the  smallest  of  these.  (A])st.,  ]).  661.) 

Land  Grant  for  Canal. — In  1827  the  Xmited  States  gave  a land 
grant  to  the  State  to  aid  in  the  construction  of  the  canal  which 
should  unite  the  waters  of  Lake  Michigan  and  the  Illinois.  This 
act  provided  nothing  as  to  the  length  of  the  canal,  but  donated  to 
the  State  one-half  the  land  for  5 miles  in  width  on  each  side  of  the 
canal  throughout  its  whole  length. 

The  longer  the  canal  the  greater  rhe  land  grant. 

That  the  length  of  the  canal  was  not  settled  at  the  time  of  the 
land  grant  of  1827  is  demonstrated  beyond  cavil  ])y  the  record  and 
is  so  expressly  found  by  the  Senate  Committee  on  February  15, 
1837,  in  the  following  words: 

‘Mn  the  examination  of  the  questions  now  under  considera- 
tion, the  committee  will  first  review  the  legislative  action  bear- 
ing upon  this  point.  In  1823  an  act  was  passed  organizing  a 
Board  of  Commissioners  to  consider,  advise  and  adopt  the 


moasiii-(‘s  ro(iiilsite  to  effect  the  (‘oiiiinunieation  canal  and 
locks  between  the  navig'a])le  waters-  of  tlie  Illinois  Kiver  and 
Ijake  Mi('higan.  Five  di-stingnished  citizens  of  the  State  were 
constituted  the  hoard.  An  examination  and  survey  were  exe- 
(‘uted  under  their  direction  by  Messrs.  Paul  and  Post,  both  of 
whom  stood  high  as  men  of  science,  talents  and  integrity. 

‘‘  In  January,  1829,  an  act  was  passed  by  which  a Board  of 
(kinal  Commissioners  was  organized,  who  were  required  to  lo- 
(aite  the  canal  to  effect  a navigable  communication  between 
Lake  Michigan  and  the  Illinois  liiver,  the  Canal  to  be  at  least 
40  feet  in  width  at  the  summit;  of  the  water  line,  28  feet  wide 
at  the  bottom  and  of  sufficient  depth  to  contain  at  least  4 feet 
of  water;  and  to  be  furnished  with  such  locks,  aqueducts  and 
dams  as  might  be  required  to  secure  a safe  and  convenient 
navigation  for  boats  at  least  75  feet  long,  134  feet  wide  and 
drawing  3 feet  of  water.  No  point  is  fixed  in  either  of  these 
acts  for  the  termination  or  commencement  of  the  canal;  nor 
veas  anij  direction  given  as  to  the  tvaters  to  he  used  for  feed- 
ers. * * * In  1834-5  another  act  was  passed  which  pro- 

vided that  the  canal  shall  be  not  less  than  45  feet  wide  at  the 
surface,  30  feet  at  the  base,  and  of  sufficient  depth  to  ensure 
navigation  of  at  least  4 feet.  * * * No  point  of  termina- 

tion teas  fixed  hy  this  act. 

‘^The  act  of  9th  January,  1836,  under  which  the  late  Canal 
Commissioners  acted,  provides  that  a canal  shall  commence  at 
or  near  the  town  of  Chicago,  on  canal  lands,  and  shall  ter- 
minate near  the  mouth  of  the  Little  Vermilion  River,  in  La- 
Salle County,  and  on  land  owned  by  the  State.” 

(From  Rep.  of  Senate  Com.,  Feb.  15,  1837,  reprinted  in 
Canal  Comrs.  Rep.  of  1900,  p.  134.)  (Abst,,  pp.  1879- 
80.) 

The  work  of  Paul  and  Post  in  1825  no  more  determined  the 
length  or  location  of  the  canal  than  any  one  of  the  numerous  sur- 
veys by  Government  engineers  determine  the  scope  and  dimensions 
of  the  future  Government  improvement  of  the  river.  All  are  ad- 
visory. It  is  the  Legislature  which  decides  these  questions — and 
it  decided  the  length  and  termini  of  the  canal  by  the  act  of  1836, 
eleven  years  after  the  Paul  and  Post  report  and  nine  years  after 
the  making  of  the  land  grant. 

It  is  indisputable  that  the  land  grant  was  made  in  1827  without 
fixing  the  length  or  termini  of  the  canal  and  that  they  were  not  fixed 
until  1836. 

Xecessaky  Amount  of  Canal. — (1)  The  actual  physical  necessi- 


2:j3 


ties  for  a,  (*anal  were  (‘onfinod  jo  a (‘anal  froin  tlie  (dii(;a^o  Kiv(*r  to 
the  Dos  Plaines;  (2)  a (‘anal  three  miles  lon^  at  Joliet  around  the 
swift  point  of  the  stream  there;  and  (d)  to  a (‘.anal  about  three 
miles  long  around  the  Grand  Eapids  of  the  Illinois  at  Marseilles. 
The  first  two  are  now  covered  by  the  Drainage  Canal,  leaving  only 
the  third  in  the  Illinois  Elver  to  be  done  and  leaving  the  Des 
Plaines  with  all  the  water  necessary  for  navigation. 

In  1837  the  Legislature  had  before  it  a proposition  to  change 
‘ these  locations  and 

‘^to  substitute  the  improvement  of  the  Illinois  Eiver  from  the 
foot  of  the  rapids  to  the  head  of  Lake  Joliet  for  steam  naviga- 
tion by  means  of  locks  and  dams.” 

(Senate  Eep.,  Feb.  15,  1837;  reprint  Canal  Eep.  1900.  p. 

133.)  (Abst.,  p.  1878.) 

The  House  of  Eepresentatives  favored  this  change. 

(Id.) 

The  Senate  rejected  it  on  the  ground  that  the  land  grant  had 
been  made  with  a view  to  a canal  extending  all  the  way  from  the 
lake  to  the  Illinois  and  that  therefore  a canal  which  stopped  at 
Lake  Joliet,  10  miles  above  the  confluence  of  the  Kankakee  and 
Des  Plaines,  would  be  a breach  of  faith. 

Whetlier  it  would  or  would  not  is  one  question  (and  upon  that 
question  the  two  houses  differ;)  but  whether  a canal  was  necessary 
or  not  to  secure  navigation  is  another  and  a different  question. 

Major  IV.  II.  H.  Benyaurd,  under  date  of  March  5,  1884,  reported 
on  a 

‘‘survey  of  the  Illinois  and  Des  Plaines  ILvers  between  La- 
Salle and  Joliet,  Illinois;  in  addition  to  the  re(piisite  locks  and 
dams  the  plan  also  contemplates  the  construction  of  a short 
canal  at  tlie  falls  of  Joliet  and  one  at  Vlarseilles.  * * * 

The  river  route  has  also  the  advantage  when  it  is  considered 
that  we  have  navigation  on  a stream  600  feet  wide  instead  of 
the  narrow  channel  of  the  canal.  Looking  at  the  matter  in  an  en- 
gineering point  of  view,  it  is  difficnlt  to  understand  what  led 
originallg  to  the  construction  of  the  canal  rather  than  the  im- 
provement of  the  natural  cha/nnel  of  the  river/ ^ 

(U.  S.  Eng.  Eep.,  1884,  III,  ])p.  1958-9.)  Abst.,  pp.  1118-9 
and  1699.) 


‘'The  earials  around  the  rapids  at  Joliet  and  Marseilles  are 
to  he  1()0  feet  w^ide  for  the  larger  system  of  locks  and  80  feet 
wide  for  the  smaller  lock,  with  slopes  of  11  to  1 except  at  the 
ni)per  end  of  the  canal  at  Joliet,  where  for  2,000  feet  the  width 
of  the  wider  canal  is  restricted  to  120  feet  by  the  manufactur- 
ing interests  on  each  side  of  the  canal.  * * * distance 

from  Joliet  to  LaSalle  by  the  I.  & M.  Canal  is  63.8  miles,  and 
by  the  river  64.2  miles,  but  the  much  greater  speed  which  a 
boat  will  be  able  to  make  in  the  open  waterway  of  the  river 
renders  it  the  more  economical  transportation  route.  ’ ^ 

(Ibid  Eep.  of  Asst.  Engr.  MJsner,  pp.  1961-2.)  (Abst.,  p. 

1119.) 

So  the  Ernst  Board  of  Engineers,  reporting  in  1905,  said : 

“It  has  been  decided  that  the  velocities  which  obtain  during 
extreme  high  water  are  prohibitive  only  below  the  Marseilles 
and  Joliet  dams.  Under  the  adopted  project  a canal  about  3 
miles  long  has  been  provided  for  each  of  these  sections.’’ 

(Abst.,  p.  662.) 

At  the  extreme  east  there  was  necessary  a short  canal  from  Chi- 
cago to  the  Des  Plaines. 

At  the  extreme  west  there  was  necessary  a canal  three  miles 
long  around  the  Grand  Eapids  of  the  Illinois  at  Marseilles. 

Paul  and  Post  had  made  a preliminary  survey  of  the  entire 
country  between  in  1825,  and  the  land  grant  had  been  donated  with- 
out any  termini  and  required  simply  that  it  should  embrace  one- 
half  of  five  sections  on  each  side  of  the  canal  from  one  end  to  the 
other. 

Having  to  build  a canal  in  Chicago  at  one  end  and  in  La  Salle 
County  at  the  other,  and  having  a land  grant  of  five  sections  of 
land  for  every  mile  of  canal,  the  State  authorities  naturally  pro- 
jected a canal  continuous  in  length  from  the  short  piece  needed  at 
the  extreme  east  to  the  short  piece  needed  at  the  extreme  west. 

So  the  Canal  Commisisoners,  by  President  Thornton,  avowed  to 
the  citizens  of  Ottawa  by  the  communication  of  July  11,  1836. 

(See  Canal  Eep.,  pp.  109-111.) 

President  Thornton  said: 

“"When  this  act  was  passed,  the  question  was  not  new,  wheth- 
er a continuation  of  the  canal  or  an  improvement  of  the  river 
below  Ottawa  by  lock  and  dam  was  most  advantageous  to  the 


g'eueral  iutcrest.  Tlie  Legislature  had  accumulated  a large 
fund  of  information  in  order  to  judge  of  the  comparative  ad- 
vantages and  disadvantages  of  each  plan,  both  in  relation  to 
the  safety  and  stability  of  navigation,  and  to  the  increased  rev- 
enue derivable  from  State  property  by  terminating  the  canal 
as  loir  doirn  the  river  as  was  contemplated  in  the  grant  of 
lands  from  the  Government  of  the  United  States.  Nor  can  it 
be  doubted  that  the  tenor  of  that  grant  had  some  influence  on 
the  decision.  * * * In  1833,  the  same  engineer  reported 

that  a comparatively  good  route  could  be  obtained  for  the  con- 
tinuation of  the  canal  from  the  mouth  of  Fox  River  to  a place 
now  known  as  Utica  and  that  great  difficulty  and  expense  would 
attend  a further  progress.  In  examining  the  rapids  of  the  Illi- 
nois below  the  mouth  of  Fox  River  he  says:  ^It  was  ascer- 
tained that  the  establishment  of  a still  water  navigation  was 
the  most  certain  and  effectual  method  of  improving  them.’ 
But”  (continues  President  Thornton)  ‘^in  his  zeal  to  demon- 
strate the  superiority  of  a railroad  over  either  mode  of  water 
communication,  he  admitted  a steamboat  canal  around  the  rap- 
ids, ‘ to  he  of  too  precarious  a nature  to  he  recommended  with 
any  degree  of  confidence  in  its  permanency  and  usefulness.’ 
He  estimated  an  independent  canal  between  Fox  River  and 
Utica  at  $580,000;  and  a still  water  navigation  of  the  same 
distance  at  $200,000;  and  it  is  worthy  of  remark  that  notwith- 
standing this  great  disparity  of  cost  necessarily  enhanced  by 
the  difficult  country  between  Utica  and  the  mouth  of  the  Little 
Vermilion,  the  Legislature  have  thought  proper  to  repeal  the 
eighth  section,  just  cited,  and  to  adhere  to  the  first  plan.  In 
fact,  they  have  presented  the  termini  in  language  not  to  be 
misunderstood,  while  they  have  given  great  latitude  and  almost 

everything  else  connected  with  the  su))ject.  * * * 

* * * * * * # ' * * * 

‘‘In  coming  to  this  conclusion,  the  Board  of  Oommissioners 
are  influenced,  in  the  first  case,  by  the  consideration  that  if  a 
continuous  canal  should  be  shewn  to  be  too  costly  for  its  ben- 
efits. a still  water  navigation  will  be  the  only  edternative, 

* * * ? 7 

(Canal  Comrs.  Rep.,  1900,  ])]>.  109-10-11.)  (Abst.,  pp. 
1868-9-70.) 

The  Canal  Commissioners  having  projected  a canal  100  miles 
long  in  order  to  get  a land  grant  100  miles  long  and  five  miles 
wide,  and  having  authority  to  erect  dams,  proceeded  to  erect  a dam 
at  the  point  where  their  canal  crossed  the  Des  Plaines  River  in 
Joliet.  That  dam  still  exists  and  is  known  as  Ham  No.  1.  It  was 
built  to  aid  navigation';  it  is  State  property;  it  is  subject  to  a lease 


to  the  (leiendant,  appellee,  wliieli  unless  otherwise  terminated  will 
expire  in  191G. 

At  jMarseilles  there  is  another  dam.  The  property  of  the  Mar- 
seilles Land  & Water  Power  Company,  which  is  incorporated  under 
the  Act  of  Mai*ch  9th,  18()7,  entitled,  ‘C\n  Act  to  incorporate  the 
Marseilles  Land  & Water  Power  Company,”  found  in  2 Private 
Laws  of  1867,  at  pp.  1810-12.  It  contained  the  ])rovision  that 

‘‘this  act  shall  not  l)e  so  held  or  construed  as  to  i)revent  the 
State  troin  taking’  possession  of  said  dam  or  removing  it  at 
any  time  for  improving  said  Illinois  liiver  for  purposes  of 
navigation  and  without  any  comi)ensation  therefor  in  case  of 
its  removal.  Said  company  shall  be  paid  a reasonable  com- 
l)ensation  therefor  in  case  said  dam  is  so  constructed  that  it 
can  be  used  in  improving  said  river,  and  when  so  taken  said 
(‘ompany  shall  cease  to  have  any  right  or  authority  to  construct 
another  dam  or  dams.” 

And  by  section  4,  private  laws  of  1869,  that  act  did  have  an 
amendment.  The  date  was  March  9,  1867,  an  act  to  incorporate  the 
Marseilles  Land  & Water  Power  Company.  In  the  4tli  Private 
Laws  of  Illinois,  page  498,  it  says : 

“An  act  to  amend  the  charter  of  the  Marseilles  Land  & 
AYater  Power  Companv,  in  the  County  of  LaSalle,”  approved 
March  27th,  1869: 

“Pc  it  enacted  by  the  people  of  the  state  of  Illinois,  repre- 
sented in  the  General  Assembly,  that  Section  4 of  the  charter 
of  the  Ytarseilles  Land  k M^ater  Power  Company  be  and  is 
hereby  amended  as  to  read,  ‘MAien  the  State  forfeits  posses- 
sion of  said  company’s  dam  for  navigation  purposes,  the  State 
shall  cause  a reasonable  compensation  to  be  paid  said  Land  & 
Water  Power  Company.’  ” 

These  are  the  only  dams  constituting  obstructions  to  navigation 
of  tlie  river. 

It  results  from  the  existence  of  the  dam  at  Joliet  (originally  built 
in  1856)  and  the  dam  at  Marseilles  (originally  built  in  1867)  that 
thence  forward  a boat  could  not  pass  from  Chicago  to  St.  Louis  or 
vice  versa  without  a portage  round  each.  One  of  the  two  was  built 
by  the  State  in  connection  with  the  canal ; and  in  the  statutory 
permit  for  the  other  the  State  expressly  reserved  the  right  to  take 
it  out  for  navigation.  The  stretch  between  the  two  embraces  16 
miles  of  the  Des  Plaines  and  about  25  miles  of  the  Illinois  River. 
Some  boats  do  ply  on  this  40-mile  stretch.  But  a generation  has 


grown  up  siii(*e  the  Stale  (lain  at  Joliet  was  put  in,  wlii('li  lias  not 
seen  i ranspaiiatio)!  eoiulneted  by  way  of  the  river. 

Meanwhile  railway  transportation  has  taken)  the  business  to  a 
great  extent  away  from  all  onr  rivers  from  tlie  Mississippi  down. 
And  in  ordei*  to  prove  the  actual  uses  of  the  river  for  transporta- 
tion purposes,  resort  is  made  to  the  history  of  the  uses  of  the 
stream  in  the  past. 

'1.  DESCRIPTIONS  IN^  REPORTS  ON  RIVER  BY  U.  S.  ENGINEERS  AND 
OTHERS. 

1816-1817 — Major  S.  H.  Long  and  Graham  and  Phillips  (From  re- 
port of  Major  S.  H.  Long,  March  -t,  1817,  16th  Congress,  1st  Ses- 
sion, Doc.  No.  17.) 

‘^The  Illinois  is  formed  by  the  union  of  three  considerable 
Iiivers,  the  Des  Plaines,  the  De  Page  and  the  Kankakee;  the 
last  of  which  is  nearly  double  the  size  of  either  of  the  two 
former.  The  Illinois  is  about  300  miles  in  length,  and  is  of 
variable  width,  from  seventy  yards  to  one  mile.  It  has  a very 
moderate  current,  and  a depth  of  water  sufficient  to  render  it 
navigable,  at  all  times,  for  boats  of  considerable  burden,  about 
230  miles  from  its  mouth.  At  the  mouth  of  the  Vermillion, 
there  are  rapids,  perceivable  only  in  the  lower  stages  of  win- 
ter. Farther  up,  the  water  is  not,  generally,  so  deep  as  it  is 
below  the  Vermillion. 

‘^The  Valley  of  the  Illinois  varies  in  its  width,  from  three 
to  ten  miles;  is,  generally,  flat  and  marshy,  and,  for  the  most 
part,  subject  to  inundation,  when  the  river  has  no  more  than  a 
medial  height.  In  some  parts  of  it,  however,  prairies  and  bot- 
toms of  considerable  extent,  are  to  be  met  with,  elevated  much 
above  high  water  mark.  In  ascending  the  river  the  bluffs  grad- 
ually decrease  in  height,  being  about  150  feet  high  at  the 
mouth,  and  about  100  feet  at  the  head  of  the  river.  Imbedded 
in  the  bluffs,  are  strata  of  limestone,  slate  and  coal,  which,  oc- 
casionally, make  their  appearance  along  the  surface  of  the  de- 
clivities. 

‘‘The  River  ]les  Planes  is  a small  stream  rising  in  the  low 
lands,  bordering  upon  the  west  side  of  Lake  Michigan,  and  has 
its  general  course  in  a southwesterly  direction.  The  valley  of 
this  river  has  an  average  width  of  about  one  mile,  and  is  ter- 
minated on  both  sides  by  regular  banks,  nearly  parallel  to  each 
other,  extending  along  the  river  about  30  miles  from  the  head 
of  the  Illinois.  In  ascending  this  river,  also,  the  banks  or 
bluffs  gradually  decrease  in  height,  being,  as  before  mentioned, 
about  100  feet  high  at  the  mouth,  and  only  20  or  25  at  the  dis- 
tance of  30  miles  higher  up  the  river,  where,  instead  of  main- 


tainiii'g  llieii*  t)amllel  direction,  they  form  nearly  right  angles 
with  the  course  of  the  river,  that  on  the  right,  taking  an  east- 
erly, and  that  on  the  left  a nortliwesterly  course;  but,  being 
gradualJy  inflected  from  these  courses,  they  form  an  extensive 
curve,  encircling  a large  tract  of  fiat  prairie,  in  no  part  ele- 
vated more  than  12  or  14  feet  above  the  common  level  of  the 
water  in  this  vicinity.  The  river,  throughout  the  above  men- 
tioned distance,  has  4 or  5 short  rapids  or  ripples  that  make 
their  appearance  only  in  times  of  low  water.  In  every  other 
part,  it  has  the  appearance  of  being  a chain  of  stagnant  pools 
and  small  lakes,  affording  a sufficient  depth  of  water  for  boats 
of  moderate  draught. 

^ ‘ In  the  flat  prairie,  above  mentioned,  is  a small  lake,  about  5 
miles  in  length,  and  from  6 to  30  or  40  yards  in  width,  com- 
municating both  with  the  Elver  Desplanes,  and  Chicago  Eiver, 
by  means  of  a kind  of  canal,  which  has  been  made  partly  by  the 
current  of  the  water,  and  partly  by  the  French  and  Indians, 
for  the  purpose  of  getting  their  boats  across  in  that  direction, 
in  time  of  high  water.  The  distance  from  the  river  Desplanes 
to  Chicago  river,  by  this  water  course,  is  about  9 miles ; through 
the  greater  part  of  which,  there  is  more  or  less  water,  so  that 
the  portage  is  seldom  more  than  3 miles  in  the  driest  season; 
but  in  a wet  season,  boats  pass  and  repass  with  facility  between 
the  two  rivers. 

^‘Tlie  Rivers  De  Page  and  Kankakee  bear  nearly  the  same 
character,  in  regard  to  their  bluffs,  valleys,  etc.,  that  has  been 
given  to  the  Desplanes.  The  former  of  these  rivers  takes  its 
rise  a few  miles  west  of  that  of  the  Desplanes,  and  has  a 
course  nearly  parallel  with  it.  The  latter  rises  in  a flat 
marshy  country  in  the  neighborhood  of  the  St.  Joseph  of  the 
Lake,  and  runs  a meandering  course  westwardly,  passing  the 
southern  extremity  of  Lake  Michigan,  at  the  distance  of  20  or 
30  miles  from  it.  Near  the  head  of  this  river  is  a small  creek 
falling  into  St.  Joseph,  through  which  boats  have  passed  in 
time  of  high  water,  from  the  St.  Joseph  to  the  Kankakee. 
The  country  through  which  the  Desplanes,  the  De  Page,  and 
the  Kankakee  rivers  take  their  course,  appears  to  be  under- 
laid with  a vast  bed  of  limestone,  which  occasionally  makes  its 
appearance  in  the  valleys  of  those  rivers,  covered  with  a soil 
too  thin  to  support  vegetation. 

‘‘Chicago  river  is  merely  an  arm  of  the  lake,  dividing  itself 
into  two  branches,  at  the  distance  of  one  mile  inland  from  its 
communication  with  the  lake.  The  north  branch  extends  along 
the  western  side  of  the  lake  about  thirty  miles,  and  receives 
some  few  tributaries.  The  south  branch  has  an  extent  of  only 
5 or  6 miles,  and  receives  no  supplies,  except  from  the  small 
lake  of  the  prairie  above  described.  The  river  and  each  of  its 
branches  are  of  variable  widths,  from  15  to  50  yards,  and,  for  2 


or  o miles  inland,  have  a sullknent  doptli  ol‘  water  to  admit 
vessels  oi*  almost  any  burden.  The  entrance  into  Lake  Michi- 
gan, Jiowever,  which  is  dO  yards  wide,  is  ol)structed  })y  a sand 
bar,  about  70  yards  broad,  upon  the  highest  part  of  which,  the 
water  is  usually  no  more  than  two  feet  deep.  The  difficulty  of 
removing  this  obstruction  would  not  be  great.  Piers  inight  be 
sunk  on  both  sides  of  the  entrance,  and  the  sand  removed  from 
between  them.  By  this  means,  the  river  would  be  rendered  a 
safe  and  commodious  harbor  for  shipping,  a convenience  which 

is  seldom  to  be  met  with  on  the  shores  of  Lake  Michigan. 

# * * * ^ 

Canal  uniting  the  waters  of  the  Illinois,  with  those  of 
Lake  Michigan,  may  be  considered  the  first  in  importance  of 
any  in  this  quarter  of  the  country,  and,  at  the  same  time,  the 
construction  of  it  would  be  attended  with  very  little  expense, 
compared  with  the  magnitude  of  the  object.  The  water  course, 
which  is  already  opened  between  the  river  Desplanes  and  Chi- 
cago river,  needs  but  little  more  excavation  to  render  it  suf- 
ficiently capacious  for  all  the  purposes  of  a canal.  It  may  be 
supplied  with  water  at  all  times  of  the  year,  by  constructing  a 
dam  of  moderate  height  across  the  I)es  Planes,  which  would 
give  the  water  of  that  river  a sufficient  elevation  to  supply  a 
canal  extending  from  one  river  to  the  other.  It  would  be 
necessary  also,  to  construct  locks  at  the  extremities  of  the  canal., 
that  communicating  with  Chicago  river  being  calculated  to 
elevate  about  six  feet,  and  that  communicating  with  the  Des 
Planes,  about  four  feet. 

^‘To  render  the  Des  Planes  and  Illinois  navigable  for  small 
boats  and  fiats  requiring  but  a small  draught  of  water,  nothing 
more  is  necessary  than  the  construction  of  sluices,  in  a few 
places  where  there  are  ripples  of  a sufficient  width  to  admit  the 
boats  to  pass  through  them.  This  may  be  effected  by  clearing 
away  the  loose  stones  from  the  bottom,  and  forming  banks  riv- 
eted with  stone  two  or  three  feet  high,  on  each  side  of  the 
sluice.  Thus,  a water  commuui cation  between  the  Illinois  and 
lake  Michigan  may  be  kept  open  at  all  times  sufficient  to  an- 
swer all  the  purposes  for  which  a canal  will  be  wanted,  for 
many  years  to  come.  A canal  uniting  the  St.  Joseph  of  the 
lake  with  the  Illinois,  by  way  of  Kankakee,  may  l)e  constructed 
also  in  a similar  manner,  and  with  great  facility,  except  that 
the  distance  by  this  route  is  considerably  greater.” 

(Keport  of  Maj.  S.  IT.  Long,  March  4,  1817,  pp.  5,  G,  7.) 

(Abst.,  pp.  707-8-9.) 

From  letter  of  Graham  and  Phillips  to  Secretary  of  War  accom- 
panying report  of  Major  S.  II.  Long: 

‘‘Kaskaskia,  April  4,  1819. 

‘‘  By  reference  to  the  map  herewith  forwarded,  it  will  be  seen 


tliat  the  little  river  Plehi.^  (‘oiiiiiig  from  tlie  nortliwest,  ap- 
pi‘()a(‘lie8  within  ten  miles  and  a quarter  of  Lake  Micliigan,  and 
then,  bending  to  the  southwest,  unites  witli  the  Theakiki,  at 
the  distanee  of  about  fifty  miles,  and  forms  the  Kiver  Illinois. 

‘‘The  eountiy  ))etween  ttie  Lake  and  the  Piein,  at  this  point 
of  ai)[)roaeli,  is  a prairie  (natural  meadow)  without  trees, 
(‘overed  witli  grass,  and,  to  the  eye,  a perfect  level.  Prom 
the  liank  of  the  Piein,  standing  on  the  ground,  the  trees  are  dis- 
tinctly seen,  with  the  naked  eye,  at  Fort  Dearborn,  on  the 
shore  of  the  lake;  from  Fort  Dearborn  they  are,  in  like  man- 
nei',  seen  on  the  bank  of  the  Piein.  Standing  on  any  interme- 
diate jioint,  between  the  lake  and  the  river,  and  the  judgment 
is  at  a loss  to  say  to  which  side  the  ground  declines,  and 
whether  the  level  of  the  Piein  or  the  lake  is  the  highest.  It 
was,  however,  determined,  from  certain  data,  that  the  level  of 
the  river  was  two  feet,  or  thereabouts,  above  the  level  of  the 
lake.  Fi'om  this  view  it  would  seem  that  the  cutting  of  a canal, 
in  this  place,  between  the  Piein  and  the  lake,  vzould  he  a work 
of  neither  skill,  difficulty  or  expense.  Small,  hovrever,  as  the 
labor  would  be,  under  this  view,  it  is  still  diminished  upon  a 
close  examination,  and  by  finding  that  an  arm  of  the  lake  called 
Chicago  puts  out  in  the  directivin  of  the  Piein,  and  that  an  arm 
of  the  Piein,  also  called  Chicago,  puts  out  in  the  direction  of 
the  lake.  They  a]>proach  within  two  miles  of  each  other;  so 
that,  in  common  water,  there  is  only  dry  ground  to  that  extent 
between  them.  The  character  of  these  two  arms  is  essentially 
different ; that  of  the  lake  being  but  about  sixty  feet  wide,  and 
from  ten  to  forty  feet  deep ; that  of  the  river  being,  in  high 
water,  from  four  to  six  feet  deep,  and,  in  places,  a mile  wide, 
and,  in  low  water,  either  dry  or  reduced  to  a gutter.  Between 
the  heads  of  these  two  arms  is  also  a gutter,  which  is  dry  in  the 
dry  seasons  of  summer  and  fall,  and  full  of  water  in  the  spring, 
and,  when  thus  filled  with  water,  the  boats,  of  six  or  eight  tons, 
engaged  in  the  Mackinaw  and  Mississippi  trade,  run  through, 
backwards  and  forwards,  so  as  to  make  no  portage  between 
^Mackinaw  and  the  Mississippi.  This  gutter,  judging  from  the 
ap]3earance  of  others  now  forming,  was,  at  first,  a path  worn 
out  by  the  feet  of  those  who  carried  things  across  the  portage, 
and  afterwards  deepened  by  me  attrition  of  the  waters,  until 
formed  into  a little  canal.  The  wind,  alone,  gives  the  water  a 
current  in  this  little  canal,  and  its  direction  depends  upon  the 
course  of  the  wind.  Objects  have  been  seen  to  float  out  of  it, 
from  the  same  point,  to  the  river  and  to  the  lake. 

“It  is  incontestibly  true,  that  an  east  wind  will  drive  the 
water  of  the  lake  through  this  gutter  into  the  Piein,  and  that 
the  water  from  Lake  Michigan  has  been  discharged,  hy  this 
outlet,  into  the  Mississippi,  and  thence  into  the  Gulf  of  Mexico. 
It  is  equally  incontestible,  that  the  waters  of  the  Piein  have 


1241. 


been  driven,  by  the  saine  eliannel,  into  tlie  bike;  and  these  plie- 
noniena  may  now  be  witnessed;  at  any  time,  wlien  ttie  waters 
are  high  and  the  wind  blows  hard.  It  follows,  therefore,  that, 
to  finish  the  canal  began  by  nature,  in  this  place,  would  require, 
as  we  have  already  said,  but  little  of  skill,  time,  or  expense. 
On  opening  the  canal,  however,  two  difficulties  would  be  expe- 
rienced. 

‘‘1st.  The  Plein  would  be  found  to  be  above  the  level  of  the 
canal ; its  water,  of  course,  would  be  diverted  from  its  natural 
channel,  and  pass  by  the  canal  into  the  lake. 

“2d.  Supposing  that  evil  remedied  by  a lock  to  lift  vessels 
into  the  Plein,  yet  the  Plein,  during  half  the  year,  does  not  con- 
tain water  enough  to  float  a boat,  and  so  could  not  become  use- 
ful as  a national  highway. 

“To  remedy  this  defect  of  water  in  the  Plein,  two  projects 
suggest  themselves.  1st.  To  sink  the  bed  of  the  Plein  below  the 
level  of  the  canal,  and  thus  increase  the  depth  of  the  Plein  as 
well  by  feeding  it  out  of  the  lake,  as  by  collecting  its  water  into 
a narrower  channel.  2d.  To  make  the  canal  unite  with  the 
Plein  lower  down  in  its  course.  A few  miles  lower  would  be 
sufficient  to  give  tlie  water  of  the  lake  a descent  into  the  river, 
as  the  Plein  has  a sensible  descent  in  this  place,  insomuch  that 
the  people  of  Chicago  call  it  ‘The  Kapids,’  having  no  other 
word  to  distinguish  moving  water  from  that  which  stands  still. 
Of  the  Plein  below  its  point  of  approach  to  the  lake,  we  would 
remark,  that  it  has  hardly  the  attributes  of  a river,  being  in 
most  places  without  current,  and  without  bnnks,  lying  as  a 
sheet  of  water  in  the  Prairie,  sometimes  a mile  wide,  and  so 
shallow  that  the  tall  grass  a[)i)ears  almost  evei'ywhere  above 
its  surface.  Having  said  this  much  of  the  facility  of  communi- 
cation by  the  Chicago,  we  would  now  remark,  that  several  other 
routes  are  perfectly  practicable.  1st.  Prom  a point  in  the 
lake  south  of  Chicago  to  enter  the  Plein  below  mount  Juliet, 
at  or  near  what  is  called  lake  an  Page,  but  which  is  only  a dila- 
tion of  the  waters  of  the  Plein.  This  route  would  lay  over 
level  Prairie,  through  a multitude  of  small  lakes,  or  ponds, 
which  have  neither  name  or  ])lace  in  any  ma}).  2d.  By  a canal 
leaving  the  lake  near  its  south  end,  and  uniting  with  the  Thea- 

hihi  just  above  its  confluence  with  the  Plein. 

********** 

“To  conclude,  the  route  by  the  Chicago,  as  followed  by  the 
French  since  the  discovery  of  the  Illinois,  })resents  at  one  sea- 
son of  the  year  an  uninterrupted  water  (‘ommunication  for 
boats  of  six  or  eight  tons  burden,  between  the  Mississippi  and 
the  Michigan  Lake;  at  another  season,  a i^ortage  of  two  miles; 
at  another,  a portage  of  seven  miles,  from  tlie  bend  of  the 
Plein  to  the  arm  of  the  lake;  at  another,  a ixirtage  of  fifty 
miles,  from  the  mouth  of  tln^  I^lein  to  the  lake;  over  wliicli 


there  is  a well  beaten  wagon  road,  and  boats  and  tlieir  loads 
ai-e  hauled  ])y  oxen  and  vehicles  kept  for  tliat  purpose  by  the 
Freiu'h  settlers  at  the  Chicago.” 

(Letter  of  (jrahani  and  Phillips,  Apr.  4,  1819,  to  Sec’y  of 
War.)  (Ahst.,  i)p.  709-10-11-12.) 

—Up port  of  (fen.  J.  A.  Wilson,  Feb.  15,  1807. 

Page  5,  Par.  2 : 

”The  supposition  is  that  the  survey  of  this  river  (the  Illi- 
nois) has  immediately  in  view  its  capacity  for  navigation  to 
LaSalle  for  the  largest  ])ossible  class  of  steamers  that  the 
river  will  admit  when  certain  obstructions  shall  have  been  re- 
moved, and  ultimately  the  determination  of  canal  facilities 
with  Lake  ^Michigan,  and  the  solution  of  the  question  of  an 
adequate  supply  of  water  from  Lake  Michigan  as  a reservoir 

for  the  canal  and  river  during  periods  of  low  water.” 
***** 

Su])sequently  by  letter  from  the  Engineer  Department, 
dated  January  8,  1867,  I was  directed  to  continue  the  examina- 
tion of  the  Illinois  Elver  as  jar  toivards  its  source  as  there 
may  l)e  reason  to  believe  that  it  is  susceptible  of  improvement 

for  the  purpose  of  Commerce  and  N avigation.  (Page  3.) 
***** 

‘^In  consideration  of  this  valuable  information  (i.  e.,  maps, 
profiles  and  notes  of  a former  survey,  in  1858,  ])y  Mr.  J.  B. 
Preston,  C.  E.),  and  the  national  interests  involved  in  the  im- 
provement of  the  Illinois  Eiver,  I became  convinced  that  no 
system  would  be  entirely  effective  which  did  not  look  to  the 
extension  of  good  navigation  for  the  largest  class  of  river 
steamers  from  the  mouth  of  the  river  to  Chicago,  on  the  lake. 
(Page  5.)  . (Abst.,  p.  648.) 

***** 

”Theee  is  no  doubt  that  dkedging  alone,  or,  at  most,  dredg- 
ing and  a feeder  from  the  lake,  can  be  made  to  ansiver  every 
purpose  in  the  improvement  of  the  Illinois  River,  if  it  is  to  be 
considered  as  independent  navigation  of  no  other  than  local 
importance ; but  it  must  be  remembered  that  this  river  is  not 
the  exclusive  property  of  those  living  upon  its  banks.  It 
forms  already  an  important  link  in  a network  of  river  naviga- 
tion extending  with  its  various  branches,  through  seventeen 
States  of  the  Union,  and  is  destined  at  no  distant  day  to  be- 
come the  great  commercial  highway  between  the  productive 
States  of  the  AVest  and  Northwest  and  the  markets  of  the 
world.  (Abst.,  p.  1698.) 

^^The  Illinois  Eiver  seems  to  have  been  s])ecially  designed 
by  nature  as  the  line  by  which  the  waters  of  Lake  Michigan 
are  to  be  connected  with  those  of  the  Mississippi.  Its  two 


24.1 


principal  trihutarios,  tlio  Des  IMaines  and  ilio  I\ankak(;o,  ris- 
ing* the  one  in  Wisconsin  and  tlie  other  in  Indiana,  run  for 
many  miles  almost  parallel  with  the  western  and  southern  lake 
sliore,  and  are  separated  from  the  lake  basin  by  a ridge  of  in- 
significant height  and  width.  A moment’s  consideration  will 
show  that  at  no  remote  period  the  waters  of  the  lake  must 
have  been  carried  off  by  these  streams  as  well  as  by  the  St. 
Lawrence.  (Page  G.)  (Ahst.,  pp.  648-9.) 

^‘Tn  fact,  it  is  the  opinion  of  many  old  contractors,  who  are 
well  acquainted  with  the  entire  region,  that  a much  more  fav- 
orable location  for  a steamboat  canal  can  be  obtained  from 
Bridgeport  to  Section  46  of  the  present  canal,  by  following  the 
line  through  Mud  Lake.  But  let  this  result  be  as  it  may,  the 
data  herein  contained,  together  with  the  existence  of  a canal 
of  limited  capacity  already  in  operation,  demonstrate  beyond 
a doubt  that  the  waters  of  the  lake  may  be  carried  into  the  Illi- 
nois River  through  a navigable  channel  of  any  required  di- 
mensions, and  at  a cost  which  cannot  be  regarded  as  excessive 
when  the  objects  to  be  obtained  are  duly  considered.”  (Pages 
6-7.)  (Abst.,  p.  6^49.) 

‘‘From  the  foregoing  considerations,  I have  the  honor  to 
recommend  the  improvement  of  the  Illinois  River  by  a system 
of  locks  and  dams,  to  be  ihaced  at  such  points  hehveen  Loch- 
port  and  Grafton,  as  may  be  determined,  after  a full  and 
careful  survey,  to  be  the  most  advantageous;  and  that  navi- 
gation shall  be  extended  to  the  harbor  of  Chicago  by  the  en- 
largement of  the  Illinois  and  Michigan  Canal,  so  as  to  adapt 
it  to  the  use  of  the  largest  boats  plying  u])on  the  Mississippi 
River.  This  will  require  a depth  of  7 feet  both  in  the  canal 
and  river,  and  the  locks  to  be  .850  feet  long  between  the  mitre- 

sills,  by  75  feet  wide.  (Id.,  p.  7.)  (Abst.,  p.  649.) 
***** 

“We  can  assert  confidently,  however,  that  the  inter- 
ests of  commerce  and  the  national  defense  require  navigation 
between  Lake  Michigan  and  Pie  Mississippi  River  for  the 
largest  river  steamboats;  that  all  the  physical  circumstances 
unite  in  making  the  line,  liy  the  way  of  the  Illinois  and  Michi- 
gan Canal  and  the  Illinois  River,  as  tlie  only  feasible  route  for 
such  a work,  and  that,  therefore,  the  enlargement  of  the  canal, 
and>  the  improvement  of  the  river  hj/  lochs  and  dams  as  here- 
in described,  are  demanded  by  considerations  of  economy,  as 

well  as  by  the  Dublic  welfare.”  (P.  8.)  (Abst.,  pp.  649-50.) 

* ' * * * * 

“It  is  quite  evident,  from  what  is  already  known,  that  steam- 
boat navigation  can  be  more  cheaply  provided  between  Lock- 
port  and  LaSalle  hy  following  the  line  of  the  river  than  hy 

enlarging  the  canal  * * *.”  (Id.,  p.  8.)  (Abst.,  p.  650.) 

* “^  * • * * * 


244 


^‘Tlie  State  of  Illinois  has  taken  this  matter  in  hand  and 
during  its  recent  session  of  its  Legislature  lias  passed  a law 
providing  ultimately  for  the  improvements  recommended 
herein.”  (Abst.,  p.  650.) 

(Deep  Cut  Legislation  followed  by  Drainage  Canal.) 

(Note:  The  distinguished  engineer  treats  the  Illinois  River 

as  embracing  the  Des  Plaines  up  to  Lockport.) 

* ‘ * * * # 

1867. — Report  of  S.  T.  Ahert  {Assistant  to  Gen.  JVilson.) 

^‘The  Des  Plaines  branch  of  the  Illinois  approaches  to  with- 
in 12  miles  of  the  western  shore  of  the  lake;  while  the  Kanka- 
kee, another  branch  of  the  same  river,  may  be  15  or  20  miles 
from  the  great  Calumet  Kiver.  a tributary  of  the  lake  at  its 
lower  extremity.  It  is  evident  that  any  desired  fall  can  be 
obtained,  from  the  fact  that  the  Des  Plaines  at  Lockport,  29 
miles  from  the  Chicago  Eiver,  and  33  miles  from  the  lake,  is 
20  feet  below  the  surface  of  this  great  natural  reservoir.  (P. 
21,  par.  3.)  (Abst.,  p.  650.) 

‘‘The  summit  level  of  the  Illinois  and  Michigan  Canal  be- 
tween the  last  named  points  is  being  now  cut  down  to  the  stand- 
ard low-water  level  of  the  lake,  for  the  purpose  of  draining 
the  stagnant  water  of  the  Chicago  Eiver.  It  is  estimated  that 
this  channel  will  discharge  24,000  cubic  feet  per  minute,  a 
quantity  equal  to  two-thirds  of  the  discharge  of  the  Illinois 
Eiver  at  Treetop  bar  during  the  low-water  stage.  This  sup- 
ply must  have  an  ameliorating  effect  upon  the  worst  navi- 
gable condition  of  the  river.  (Par.  4.)  (Abst.,  p.  650.) 
***** 

“The  practical  conclusion  from  the  foregoing  statement  is, 
that  a method  of  improvement  by  feeding  from  Lake  Michi- 
gan as  a reservoir  is  feasible  between  LaSalle  and  Grafton, 
but  above  that  point  it  will  be  necessary  to  employ  locks  and 
dams,  and  small  sections  of  canal  at  Lockport,  Joliet  and 

Marseilles  rapids.^'  (P.  23,  par.  10.)  (Abst.,  p.  650.) 
***** 

“It  may  not  be  out  of  place  before  closing  this  report  to 
bring  together  a few  facts  which  establish  the  superiority 
of  the  Illinois  Eiver  as  the  route  for  a navigable  connection 
between  the  lakeis  and  the  Mississippi  Eiver.  * * (P. 

28,  par.  5.)  (Abst.,  pp.  650-1.) 

“The  sources  of  the  river  being  in  a lower  latitude  than  any 
of  its  rivals,  this  advantage  increases  as  the  river  advances 
in  its  course,  and,  as  a consequence,  less  obstruction  to  navi- 
gation, and  less  damage  to  works  of  improvement  may  be 
anticipated  from  the  length  of  the  winter  and  the  breaking 
u^o  of  ice  in  the  spring.  * «=  «=??  (Par.  6.)  (Abst.,  p.  651.) 

“A  more  important  advantage  belongs  to  the  valley  of  the 
Illinois;  upon  it  alone  is  a navigation  practicable  for  the 


245 


largest  sieaniei’s,  by  the  eoiii[)l(‘tion  of  which  a.  union  will  he 
effected  witli  the  best  navigable  conditions  of  the  western 
rivers,  ])ossessing  an  aggregate  length  in  their  niain  (‘hannels 
of  12,000  miles,  exceeding  in  their  collateral  channels  and 
tributaries  39,000  miles,  and  draining  an  area  of  91.1,000 
square  miles,  with  90,300  square  miles  of  lake  surface,  bear- 
ing a commerce  of  413,000  tons  burden.’’  (P.  29,  par.  2.) 
(Abst.,  p.  651.) 

(That  was  in  1867.  It  is  now  55,000,000  tons. 

Wilson  and  Gooding — 1868,  work  of  1867. 

Prom  the  Keport  of  General  J.  A.  Wilson  and  Engineer  Good- 
ing (1  U.  S.  Eng.  Rep.  1868,  p.  442)  : 

‘^The  Des  Plaines  River  rises  in  the  State  of  A¥isconsin 
and  runs  nearly  due  south,  parallel  with  the  lake  shore,  and 
generally  not  more  than  eight  or  ten  miles  from  it,  until  it 
reaches  a point  about  13  miles  in  a southwest  direction  from 
the  mouth  of  Chicago  River.  Here  is  a slight  depression,  a 
mile  or  more  in  width,  extending  across  from  the  lies  Plaines 
to  the  south  branch  of  Chicago  River,  through  which  a part 
of  the  waters  of  the  former  river,  in  time  of  floods  flow  into 
the  lake.  In  this  depression  is  what  was  once  known  as  Port- 
age Lake  (so  designated  on  the  old  maps  of  the  country),  but 
now  better  known  as  Mud  Lake,  a succession  of  shallow  ponds 
on  the  same  level  connected  with  each  other  and  with  the 
Des  Plaines  River,  and  extending  about  six  miles  towards 
Chicago  River.  This  was  the  portage  or  carrying  place  be- 
tween the  waters  of  the  Lakes  and  the  Mississippi  made 
memorable  by  the  early  French  voyageurs,  and  so  well  known 
to  fur  traders.  But  Portage  or  Mud  Lake  has  ceased  to  ex- 
ist, the  shallow  ponds  having  been  drained,  and  the  impas- 
sable swamps  rendered  valuable  land. 

‘‘There  can  be  no  doubt  that  through  this  depression  there 
once  was  an  outlet  from  the  lakes  to  the  Mississippi,  which 
was  closed  by  the  recession  of  the  waters  from  the  lakes. 
Even  now  at  the  present  stage  of  Lake  Michigan  its  surface 
is  only  between  eight  and  nine  feet  below  the  summit.  The 
Des  Plaines  River,  from  the  depression  described,  changes 
its  course  and  runs  in  nearly  a southwest  direction  until  it 
forms  a junction  with  the  Kankakee.  The  river  itself,  except 
in  floods,  is  very  shallow,  being  often  reduced  in  dry  seasons 
to  a mere  brook,  discharging  less  than  1,000  cubic  feet  of  water 
per  minute.  But  the  valley  averages  a mile  wide  and  is  ter- 
minated on  both  sides  by  well-marked  terraces  which  become 
higher  and  higher  as  they  approach  the  Illinois.  Evidence 
at  every  step  presents  itself  that  the  water,  when  this  was 
the  great  outlet  of  the  lakes,  extended  from  bluff  to  bluff.” 

(Abst.,  p.  1117.) 


(Assistant  to  Gen.  Wilson,  18f)8,  work  of  1867.) 

3868. — Engineer  Worrall’s  report  appended,  pp.  459,  460-1-2-3-4, 

favors  using  the  river  with  locks  and  dams,  and  states,  p.  464, 
that  on  the  Illinois  Kiver 

“the  depths  are  reduced  almost  every  season  upon  the 
shoals  in  the  bed  of  the  stream  until  they  do  not  exceed  an 
average  depth  of  20  inches,  thus  in  fact  suspending  naviga- 
tion for  periods  varying  from  60  to  90  days,  and  extending 
sometimes,  as  in  the  season  last  past,  to  a period  of  150  davsd’ 

(Abst.,  p.  1485.) 

Ordinarily,  out  of  244  days  of  weather  suitable  for  navigation, 
navigation  is  suspended  75  days.  This  year  (1867)  is  was  sus- 
l)ended  150  days — a most  “excessively  dry  season.” 

The  depths  accordingly  were  less  than  half  of  normal.  The 
profile  of  General  Wilson  taken  that  year,  therefore  does  not  fairly 
represent  the  river.  General  Wilson  did  his  work  well.  He  did 
not  select  that  year.  He  simply  was  ordered  from  Washington 
at  that  time  to  do  that  work,  and  did  it,  and  found  and  reported 
the  season  an  “excessively  dry  season,”  doubling  the  ordinary 
low-water  period. 

The  same  report  found  the  fiow  of  the  Des  Plaines  to  be  (in  that 
excessively  dry  season,  with  navigation  suspended  for  double  the 
ordinary  periods)  633  cubic  feet  per  second.  Double  this,  makes 
1,266  cubic  feet  per  second,  or  75,960  cubic  feet  per  hour.  ]\Ir. 
Gooding  in  1838  found  it  to  be  72.000  feet  per  hour,  and  its  mini- 
mum 60,000  feet  per  hour. 

Report  of  Col.  J.  N.  Macomb  and  Assistant  F.  C.  Doran,  1874-5, 
on  Transportation  Routes  to  the  Seaboard.  (U.  S.  Eng.  Eep.  1875 ; 
App.  C.  C.  7.)  (Abst.,  p.  651.) 

“This  survey  led  to  the  conclusion  that,  on  every  account, 
the  Hennepin  Canal  and  Upper  lllmois  River,  and  enlarged 
canal  from  Joliet  to  Chicago,  will  afford  the  best  through 
' route  for  navigation  between  the  Mississippi  River  and  Lake 
Michigan  that  can  be  secured  in  this  vicinity.  * * * ” 

(P.  95,  par.  2.) 

“Indeed,  the  Hennepin  Canal,  without  the  improvment  of 
the  Upper  Illinois  River  and  the  enlargement  of  the  eastern 
portion  of  the  Illinois  and  Michigan  Canal,  would  be  useless 


i>47 


as  an  outlet  tor  the  freights  of  tlie  lJ|)])er  M ississi))})!  Itivei'; 
and  a earefnl  consideration  of  the  subject  lias  shown  that  the 
improvement  of  the  Upper  Illinois  River,  to  ac'cord  with  the 
scheme  of  iniproveinent  now  in  progress  for  its  lower  por- 
tion, is  gredtly  to  he  preferred  as  a measure  of  economy  in  its 
broadest  sense,  rather  than  to  undertake  the  enlarging  of  the 
H'estern  portion  of  the  Illinois  and  Michigan  Canal  lying  be- 
tween Joliet  ayid  the  Hennepin  basin.”  (Par.  5.)  (Abst.,  p. 
651.) 

‘^The  improvement  of  the  eastern  portion  of  the  Illinois 
and  Michigan  Canal  involves  the  further  cutting  down  of  the 
summit-level  and  enlarging  the  water  way  so  as  to  afford  an 
unfailing  supply  of  water  from  Lake  Michigan  for  the  im- 
proved Illinois  Eiver.”  (Par.  6.)  (Abst.,  p.  651.) 

(Now  done  by  the  Drainage  Canal.) 

Report  by  Assistant  F.  C.  Doran,  1875. 

'Mn  fact,  the  geological  features  of  this  route,  render  it  pre- 
eminent in  the  matter  of  economv  of  construction.  * * 

(P.  97,  par.  2.)  . 

‘‘The  second  division,  extending  from  Joliet  to  LaSalle, 
will  consist  of  an  improvement  of  the  river  by  locks  and 
dams.  * * (Par.  3.) 

“Prior  to  the  year  1872,  the  summit  level  of  the  Illinois 
and  Michigan  Canal  was  some  8 feet  above  the  standard-level 
of  Lake  Michigan,  and  the  quantity  of  water  reciuisite  to 
maintain  navigation  on  the  summit-level  of  the  canal  was 
supplied  from  Lake  Calumet  by  a feeder  and  from  the  Chi- 
cago River  by  expensive  ])umping  machinery. 

“Some  time  during  the  year  1866,  the  Board  of  Public 
Works  of  the  City  of  Chicago  entered  into  a contract  with  the 
State  to  cut  down  and  reduce  the  summit-level  of  the  canai  to 
the  elevation  of  the  lake. 

“The  object  of  this  work  on  the  part  of  the  city  authorities 
was  to  obtain  an  outlet  for  the  South  Branch  of  the  Lhicago 
River;  that  being  the  rece})tacle  for  the  sewerage  of  a large 
part  of  the  city.”  (Par.  10  to  13.) 

Benyaurd — Profile  and  Work  of  1883. 

1884. — Maj.  W.  H.  H.  Benyaurd,  in  his  report  to  the  Chief  of  Engi- 
neers, U.  S.  A.,  March  5, 1884  (U.  S.  Eng.  Rep.  1884,  App.  HH, 
Vol.  Ill,  pp.  1957-1962)  : 

“The  survey  was  commenced  at  Dam  No.  1 on  the  Des 
Plaines  River,  at  Joliet,  and  continued  to  a point  on  the  Illi- 
nois River  near  LaSalle,  where  the  Illinois  and  Michigan 


(.^aiial  enters  the  i^ool  ereated  by  the  ioek  and  dam  constructed 
by  the  State  at  Jlenry. 

‘‘The  rivers  have  an  average  widtli  of  about  GOO  feet,  with 
banks  from  H to  23  feet  in  lieight  above  Jow  water,  so  that 
witliin  ordinary  stages  the  stream  flows  within  fixed  banks. 
Tlie  oscillation  })etween  higli  and  low  water  is  about  15  feet, 
tliougii  a height  of  23  feet  has  been  recorded,  occasioned  by 
an  ice  gorge. 

“The  fall  in  the  low  water  surface  between  the  points  in- 
dicated above,  a distance  of  G4.2  miles,  is  100.25  feet.  This 
fall,  however,  is  not  equally  distributed  over  the  entire  dis- 
tance, but  occurs  at  various  points,  principally  at  the  ripples 
separating  the  different  pools,  and  amounting  in  some  cases 
to  10  feet  per  mile. 

“It  is  evident,  after  consideration,  that  the  only  feasible 
plan  to  render  the  stream  navigable  is  to  slack-water  the 
entire  distance.  This  can  be  accomplished  by  the  construc- 
tion of  nine  locks  and  dams,  the  cost  of  which  depends  upon 
whether  the  plan  adopted  shall  be  in  conformity  with  that 
now  in  course  of  execution  for  the  lower  Illinois  Eiver,  or 
whether  the  locks  shall  be  of  the  size  recommended  for  the 
Hennepin  Canal.  In  addition  to  the  requisite  locks  and  dams, 
the  plan  also  contemplates  the  construction  of  a short  canal 
at  the  falls  of  Joliet,  and  one  at  Marseilles.  * * * (Abst., 

p.  1118-9.) 

“The  Illinois  Eiver,  below  the  termination  of  the  present 
survey,  has  been  rendered  navigable  by  the  State  by  the  con- 
struction of  the  locks  and  dams  at  Henry  and  Copperas 
Creek.  Two  additional  locks  are  now  in  course  of  construc- 
tion by  the  Grovernment,  which  will  carry  the  navigation 
through  to  the  Mississippi.  All  the  locks  are  350  feet  long 
between  gates,  by  75  feet  wide,  and  adapted  for  the  passage 
of  the  largest  size  steamers  navigating  the  river. 

^‘With  the  improvement  of  the  river  now  in  question  car- 
ried on,  navigation  will  he  brought  to  within  33  miles  of  the 
lake,  and  this  stretch  can  he  opened  hy  improving  the  Des 
Plaines  higher  up,  and  by  enlarging  the  present  Illinois  and 
Michigan  Canal. 

* * * • * * 

“With  the  data  furnished  by  the  present  survey,  it  has 
been  ascertained  that  the  cost  of  the  enlargement  of  the  canal 
for  the  middle-sized  locks  is  less  than  what  the  improvement 
of  the  river  would  cost  for  the  same  class  of  works,  while  in 
the  case  of  the  larger  locks  the  expense  would  be  greatly  in 
favor  of  the  river  route.  The  additional  cost  of  the  river 
route  in  the  first  instance  would  be  offset  by  the  lesser 
amount  that  would  be  required  for  maintenance,  repairs,  etc., 
as  the  long  line  of  canal,  with  its  aqueducts,  feeders,  weirs. 


ot(‘.,  would  1)0  ii  (‘onstaiii  souroo  oT  oxpenvso.  Tlio  rivor  i-outo 
lias  also  the  advantage,  when  it  is  considered  that  we  have 
navigation  on  a stream  (>00  feet  wide  instead  ot'  the  narrow 
channel  ot*  the  canal. 

“Looking  at  the  matter  in  an  engineering  point  of  view, 
it  is  difficult  to  understand  what  led  originally  to  the  con- 
struction of  the  canal,  rather  than  the  improvement  of  the 
natural  channel  of  the  river.  Should  the  Illinois  and  Michi- 
gan Canal  he  accepted  by  the  Government,  and  its  enlarge- 
ment undertaken,  iJiat  part  hehveen  Joliet  and  LaSalle  shonld 
he  abandoned  and  the  river  route  hetiveen  these  points  adopted. 

“Another  point  in  the  contemplated  improvement,  or  in 
the  acceptance  of  the  Illinois  and  Michigan  Canal,  demands 
notice.  As  before  mentioned,  two  locks  and  dams  are  in 
course  of  construction  on  the  lower  river  by  the  Government, 
above  wdiich  there  is  a stretch  of  88  miles  of  river  improved 
by  and  iiow  under  the  control  cf  the  State.  Should  the  United 
States  continue  the  improvement  between  Joliet  and  LaSalle, 
there  will  then  be  a part  of  the  river  forming  a link  between  the 
upper  and  lower  portions  over  which  the  State  now  exercises 
control,  and  upon  which  tolls  are  collected  for  the  passage  of 
boats  through  the  locks.”  (Eeport  of  Chief  of  Engineers, 
U.  S.  A.,  Part  III,  1884,  pp.  1958-9.)  (Abst.,  pp.  1699-1700.) 

1887. — Report  of  Major  Handhurip  Chief  of  Engineers^  1887. 

(Abst.,  p.  652.)  (Vol.  in,  Ai)pendix  II.) 

“The  United  States  and  the  State  of  Illinois  have  long  been 
committed  to  the  project  of  opening  a water  communication 
between  the  Mississippi  River  and  the  northern  lakes  of  capac- 
ity sufficient  for  the  wants  of  commerce  and  for  the  exigencies 
of  our  national  defense,  should  these  ever  arise.  * * 

“Pushing  this  improvement  through  to  the  lake,  the  con- 
necting line  will  be  formed  which  will  join  the  northern  lakes 
with  the  vast  network  of  navigable  rivers,  whose  waters  flow 
into  the  Gulf  of  Mexico,  on  a scale  to  a certain  degree  com- 
mensurate with  the  importance  of  the  commerce  that  will  be 
affected  by  it.”  (Id.) 

“The  problem  of  connecting  Lake  Michigan  with  the  Mis- 
sissippi River  by  a commodious  water  way  that  could  be  used 
for  commercial,  military,  and  naval  purposes,  has  received 
attention  from  our  most  thoughtful  statesmen  from  the  day 
of  Albert  Gallatin  to  the  present.”  (Page  2122,  Pars.  2-3.) 

(The  mere  fact  that  such  a route  is  available  will  serve  as 
a wholesome  regulation  to  the  rates  that  would  be  exacted 
by  other  modes  of  transportation  were  this  one  not  in  exist- 
ence.) 


Report  of  the  Comstoch  Board,  1886. 

(See  lleport  of  tlie  Chief  of  Engineers,  1887,  Part  8,  Appen- 
dix II.) 

Eroni  A'V.  (1  Endicott,  Secretary  of  War. 

“The  Report  of  the  JP)ard  of  Engineers  shows  that  to  en- 
large tile  canal  between  Joliet  and  LaSalle,  and  provide  for 
•an  increased  navigation,  equal  to  that  contemplated  by  tbe 
im])rovements  in  progress  on  the  Illinois  River,  lietween  La- 
Salle and  its  junction  with  tlie  Mississippi,  would  reciuire 
an  expenditure  of  money  greater  thorn,  the  cost  of  improving 
the  river  itself  hetiveen  Joliet  and  LaSalle.  If  such  is  the 
case,  the  river  route  shoidd  he  improved  as  recommended.’^ 
(page  2125,  last  paragrapli.)  (Abst.,  652-3.) 

“The  conclusion,  therefore,  would  seem  to  be  clear  that  the 
United  States  should  not  be  bound  to  enlarge  the  existing 
canal  between  LaSalle  and  Joliet,  if  the  improvement  of  the 
Illinois  River  between  those  places  will  furnish  a cheaper 
mode  of  communication,  nor  to  maintain  any  portions  of  the 
canal  the  abandonment  of  which  may  become  necessary  or 
desirable  in  the  future.’’ 

Same  Volume- — Report  of  Chief  of  Engineers,  J.  C.  Duane. 

“AVith  reference  to  the  conditions  in  this  act  of  cession  re- 
garding the  enlargement  of  the  canal,  I would  remark  that 
the  locks  and  dams  that  have  been,  and  are  to  be,  built  by  the 
United  States  below  LaSalle  liave  been  projected  with  a view 
to  a steamboat  navigation  of  the  first  class,  and  the  project 
looks  to  a continuation  of  navigation  upon  the  same  scale  be- 
tween LaSalle  and  Joliet,  and  since  a cost  of  an  enlargement 
of  the  canal  between  these  points  would,  it  appears,  be  greater 
than  that  of  the  improvement  of  the  river  itself,  a river  route 
hetiveen  these  points  shoidd  he  adopted.”  (Page  2127,  par.  2.) 
(Abst.,  p.  653.) 

Report  of  Board  of  Engineers.  (Id.) 

“The  water  way  from  Chicago  to  Grafton,  on  the  Alissis- 
sippi  River,  is  a most  important  one,  and  wdien  completed 
there  is  little  doubt  that  it  will  richly  pay  for  itself  in  the 
reduction  and  regulation  of  freight.”  (P.  2129,  par.  3.)  (Abst.. 
p.  653.) 

(“These  remarks  are  concurred  in  by  the  Chief  of  Engi- 
neers in  his  letter  submitting  this  report  to  the  Secretary  of 
War.”  Per  Major  Handbury,  p.  2122.) 


1890. — Report  of  Hen)  it  or  tj  District  of  (Chicago,  L.  hL  Dooley,  (Jhief 
Fj)tgi}ieer,  on  the  Lakes  to  (hilf  Waterway,  pp.  ?)A. 

‘Hireat  navigable  rivers,  separated  by  a short  and  low  port- 
age, tlie  favorite  trail  of  the  Indian  and  the  trapper,  guided 
the  first  explorers,  Joliet,  Marquette,  La  Salle  and  Hennepin, 

whose  names  are  memorialized  in  the  geography  of  the  route.” 

# # 

“The  navigable  waters  of  the  Des  Plaines,  as  reserved  for 
public  use  by  the  original  land  survey  (made  in  1821),  ap~ 
proached  at  Summit  ivithin  seven  miles  of  the  ivaters  of  Lake 
Michigan  at  the  South  Branch  of  the  Chicago  River  at  Bridge- 
port/’ (Abst.,  p.  1186.) 

An  interesting  resume  of  the  history  of  the  project  and  the  early 
surveys  follows  which  occupies  pages  1186-1188  of  the  Abstract. 
Tliis  public  document  had  been  in  circulation  for  fourteen  years  be- 
fore these  contracts  were  made. 

1890. — From  Report  of  1890,  Capt.  W.  L.  Marshall,  Ex.  Doc.  264.. 

^‘The  most  practicable  routes  across  the  Chicago  Divide, 
and  which  have  been  long  known  and  recognized,  are  two,  each 
of  which  admits  choice  of  location,  the  valleys  being  quite 
wide.”  (Page  3,  par.  3.) 

1.  ^^By  wa}^  of  the  Chicago  Elver  and  its  South  Fork,  and 
the  present  location  of  the  Illinois  and  Michigan  Canal,  or 
Mud  Lake,  and  the  Ogden  Ditch,  to  the  Des  Plaines,  near 
Summit,  about  12  miles  from  the  City  Hall  of  Chicago,  and 
about  8 miles  from  Bridgeport;  thence  via  the  Des  Plaines 
River  Valley  uniting  at  Sag  Bridge  with  route.” 

2.  ‘AVhich  is  via  the  Grand  and  Little  Calumet  Rivers  to 
Blue  Island,  thence  westward  along  the  old  Calumet  Feeder 
Route  to  the  Des  Plaines  River  at  Sag  Bridge.” 

Page  12,  Par.  2 : 

”The  two  routes  estimated  for,  i.  e.,  via  Chicago  River  and 
via  the  Calumet  River  and  the  ‘^Sag,”  unite  at  the  Sag  Bridge 
about  17  miles'  from  Blue  Island  and  Bridgeport,  and  thence 
to  LaSalle  coincide.” 


Chicago  River  Route. 

Par.  3 : 

‘^The  route  proposed  follows  the  Chicago  River  from  its 
mouth,  via  its  south  branch  to  near  Bridge])ort,  thence  via 
the  West  Fork  of  the  south  branch  and  the  Ogden  Ditch  to 
Summit,  thence  parallel  to  the  present  location  of  the  Illi- 
nois and  Michigan  Canal,  on  lower  ground,  3 miles,  more  or 
less,  where  it  enters  the  bed  of  the  Des  Plaines  River  which 


it  prju'ticall y follows,  cutting  off  bends  to  Sag  Bridge,  where 
it  unites  witli  tlie  second  or  Sag  route.”  (Abst.,  p.  God.) 

Jbir.  4: 

^‘Tlie  route  is  preferred  to  the  present  location  of  the  Illi- 
nois and  Michigan  Canal,  or  one  adjacent  to  it.” 

1.  ‘‘Because  it  occupies  lower  ground  and  the  portable 
amount  of  excavation  required  is  less,  since  the  earth  exca- 
vated from  the  old  canal  still  remains  as  spoil  banks  to  be 
removed.” 

2..  “Because  the  old  canal  is  paralleled  by  a railroad  on  each 
side  and  there  is  not  sufficient  room  for  the  enlargement  of  the 
canal  without  condemning  the  railroad  right  of  way  and  re- 
moving one  or  both  of  the  tracks.” 

3.  “Because  the  present  canal  is  the  property  of  the  State 
of  Illinois  and  the  conditions  of  transfer  have  not  been  ac- 
cepted by  the  United  States.  These  conditions  are  such  that 
their  acceptance  would  involve  greater  cost  than  a new  right 
of  way.” 

4.  “The  Illinois  and  Michigan  Canal  is  the  main  sewer  of 
the  City  of  Chicago,  as  well  as  a commercial  highway,  and  gan 
not  well  be  enlarged  without  either  interfering  seriously  with 
its  uses  or  at  increased  cost  of  work  from  delay  due  traffic 
upon  the  canal.” 

5.  “As  a means  of  transportation  and  drainage  it  is  of 
advantage  in  the  prosecution  of  the  work  parallel  to  it  to 
maintain  it  in  a serviceable  condition  during  the  construction 
of  the  larger  canal.” 

6.  “For  several  miles  of  its  course  between  Willow 
Springs  and  Lemon t it  is  excavated  in  solid  rock  that  the  new 
route  avoids,  so  that  the  old  canal  location  could  not  he  fol- 
lowed in  any  event  with  advantage  further  than  throughout 
the  earth  section.”  (Abst.,  pp.  954-5.) 


Sag  or  Calumet  Route. 


Page  13,  par.  11 : 

“The  proposed  route  is  via  Grand  Calumet  River  to  108th 
Street ; thence  via  a cut-offi  through  Lake  Calumet  to  its  , 
southwestern  shore;  thence  by  another  cut-otf  to  the  Little 
Calumet  River ; thence  to  Blue  Island ; thence  nearly  due  west 
via,  practically,  the  line  of  the  old  Calumet  Feeder,  north  of 
Lane’s  Island,  to  the  junction  of  the  two  routes  at  Sag 
Bridge.”  • (Abst.,  p.  955.) 

Par.  3: 

“It  is  believed  that  the  most  advantageous,  but  not  the 
least  expensive  route,  is  estimated  for  via  the  Sag  and  the 
least  expensive  and  most  available  route  is  selected  via  the 
Chicago  River,  for  the  estimates  submitted.  Over  each  route 


253 


0110  guard-look  to  prevent  Dos  Idaiiies  Hood  water  passing 
into  Ijake  Mioliigan,  carrying  Chicago  sewerage  is  estimated 
forC’ 

Par.  8: 

‘‘At  Sag  Bridge  the  various  routes  from  Lake  Micliigan 
unite  and  thence  the  proposed  canal  follows  practically  the 
present  bed  of  the  Des  Plaines  River  to  below  Lockport,  the 
14-foot  channel  being  cut  through  solid  limestone  rock  its  full 
depth,  from  a point  134,000  to  a point  168,000  feet  distant 
from  Lake  Michigan,  and  partly  in  rock  from  126,000’’  (p.l4, 
par.  1)  “to  134,000,  and  from  168,000  to  184,000,  where  the 
bottom  of  the  14-foot  channel  reaches  the  surface  below  Lock- 
port.  The  line  from  Lockport  to  Joliet  follows  the  west  side 
of  the  Des  Plaines  Valley.” 

Par.  2: 

“Descending  by  four  locks  in  the  14-foot  project,  and  live 
locks  in  the  8-foot  project,  the  canal  enters  the  second  basin 
at  Joliet.  Waste  gates  are  provided  for  below  Lockport  to 
vent  the  waters  of  the  Des  Plaines  at  such  times  as  they  may 
exceed  the  necessities  of  the  canal  and  overtop  the  guard- 
lock  gates,  and  are  of  sufficient  capacity  to  vent  the  natural 
high-water  discharge  of  the  Des  Plaines.  These  gates  will 
but  seldom  and  for  short  times  be  used  to  their  full  capacity. 
A constant  flow  will  not  be  maintained  through  them.  They 
will  only  be  opened  when  there  is  an  apparent  necessity  for 
venting  flood  waters.” 

Page  14,  par.  9 : 

“At  Joliet  it  is  ])roposed  to  remove  both  State  dams;  to 
lower  the  water  surface  of  the  first  ])ool  2 feet  for  the  14- 
foot  project,  and  to  raise  the  surface  of  the  second  pool  8 
feet,  building  substantial  masonry  laid  in  cement  retaining 
walls  5 feet  above  the  constant  water  level ; to  build  a new 
dam  at  the  foot  of  this  pool  and  place  in  it  a movable  section 
or  suice-way,  closed  by  a controllable  gate,  probably  a modi- 
fied ‘bear  trap’  of  the  ‘Parker’  pattern,  to  vent  floods;  to 
construct  along  the  retaining  wall  on  the  east  side  a culvert 
(p.  15)  or  drain  to  carry  off  sipe  water;  to  widen  the  Illinois 
and  Michigan  Canal  by  rock  excavation  to  160  feet;  to  deepen 
it  8 feet  by  raising  the  canal  embankment  by  constructing 
masonry  retaining  walls;  to  insert  in  this  wall,  if  necessary, 
aditional  sluiceways  closed  by  cylindrical  gates  of  the  ‘Tain- 
tor’  type,,  to  supplement  the  discharge  through  the  sluice- 
way of  the  dam  at  floods ; to  build  below  these  sluices  a guard- 
lock,  and  to  continue  the  level  to  a point  H miles  below 
Joliet,  where  a lock  is  placed  of  8 feet  lift  to  again  return  to 
present  levels  in  the  Illinois  and  Michigan  Canal.  The  line 
then  leaves  the  present  canal  in  a direct  line  to  Lake  Joliet, 
and  thence  to  LaSalle  occupies  the  beds  of  the  Des  Plaines 


and  Illinois  Ivivers,  except  at  Atarseilles,  wliere  a short  canal 
is  constructed  around  the  rapids  at  that  point.” 

Par.  3: 

‘‘In  the  river  portion  of  the  route  the  required  depths  are 
obtained  l)y  the  aid  of  dams,  as  far  as  practicable.  The  dams 
are  su})posed  to  he  as  liigli  as  admissilde,  without  too  great 
damage  l)y  howage,  and  the  additional  depths  recpiired  are 
obtained  by  excavation  in  the  beds  of  the  river.  The  water 
surfaces  are,  therefore,  common  to  the  two  projects.  The 
excavation  required  over  the  river  section  for  the  ll-foot  pro- 
ject is  very  great  and  expensive,  and  tlie  material  if  not  en- 
tirely removed  from  the  high-water  channel  will  diminish  its 
cajiacity.  The  estimates  are  not  based  upon  the  removal  of 
this  material  and  placing  it  upon  the  top  of  the  hanks,  hut 
simply  for  removing  it  from  the  navigable  channel  and  its 
de]^osit  within  the  hanks  where  it  will  not  probably  re-enter 
the  excavated  channels.  If  it  he  desired  to  enlarge  the  ca- 
pacity of  the  natural  channel  of  the  upper  Illinois  this  exca- 
vated material  must  be  removed  beyond  the  high  water  limits 
at  increased  cost.” 

Comparative  Advantages  of  the  Ttvo  Routes  Front  Sag  Bridge 

to  Lahe  Michigan. 


Page  17,  Par.  1 : 

“The  Chicago  River  and  its  branches,  with  its  docks  and 
slips,  constitute  the  harbor  of  Chicago,  where  all  business  of 
the  port  by  lake  craft,  except  a comparatively  insignificant 
amount  at  the  Illinois  Central  Docks  and  Ogden  Slip,  is  trans- 
acted.” 

Par.  2: 

“The  arrivals  and  departures  of  vessels  have  reached  the 
enormous  aggregate  of  over  22,000  annually,  in  a season  of 
navigation  of  about  seven  months,  making  Chicago  the  first 
port  in  the  United  States,  as  far  as  number  of  arrivals  and 
departures  is  concerned.” 

Par.  3:  ^ ^ 

“Along  this  river  are  great  lumber  and  coal  yards,  grain 
elevators,  meat  packing  establishments,  and,  generally,  all 
the  means  and  appliances,  and  paraphernalia  of  the  great 
coimnerce  by  lakes  centering  at  Chicago,  as  well  as  the  facili- 
ties for  transfer  from  rail  to  water  transportation.” 

Par.  4 : 

“If  the  Cliicago  Eiver  could  be  made,  at  reasonable  ex- 
pense, capable  of  permanently  accommodating  the  increased 
commerce  that  the  opening  of  a thorough  route  of  transporta- 
tion of  great  capacity  between  the  lakes  and  the  ^Mississippi 
River  will  probably  bring  about,  there  could  be  no  question  of 


255 


the  i)roi)er  ienniiiiis  of  the  line,  as  fai*  as  th(*  lnt(‘rests  of 
(p.  IS)  e()niiner(‘e  are  (*on(*erne(l.  But,  on  the  other  iiarul,  the 
river  is  very  crooked,  and  ohistructed  hy  nuiueroiis  swin^ 
bridges,  nearly  all  of  them  of  less  than  80  feet  clear  s})an,  and 
in  any  inovement  loaded  vessels  recjuire  the  assistance  of 
tugs.” 

Practkability  of  the  Proposed  Channel,  Discharge  of  the  Illi- 
nois Biver,  and  Effect  of  Dams  in  the  Bed  of  the  Illinois. 

Page  20,  par.  7 : 

“The  proposed  channel  from  Lake  Michigan  to  Lake  Joliet 
is  nearly  entirely  artificial;  in  other  words,  a canal.  This 
canal,  for  short  distances,  enters  the  bed  of  the  Des  Plaines 
Elver,  and  is  subject  to  its  floods  throughout  these  short 
stretches.  The  maximum  amount  of  this  flood  water  to  be 
provided  for  at  long  intervals,  will  probably  not  exceed  10,- 
000  cubic  feet  per  second  under  present  conditions.  The  av- 
erage spring  freshets  do  not  probably  exceed  from  3,000  to 
6,000  cubic  feet  per  second.  The  canal  with  its  waste  gates 
and  weir  at  Lockport;  the  controllable  sluice-gate  in  the  dam 
at  Joliet;  the  additional  sluice-gates  in  the  canal  revetment 
below  the  dam  and  above  the  guard-lock  at  Joliet  (not  esti- 
mated for),  taken  in  connection  with  the  high  retaining  walls 
and  the  allowable  depth  of  (werflow  over  the  crest  of  the 
Joliet  dam,  will  safely  pass  this  water.” 

Par.  8: 

“This  part  of  the  route,  or  the  canal  section,  as  designed, 
is,  then,  considered  feasible  and  practicable,  with  the  under- 
standing that  possibly  a secure  levee  may  be  demanded  from 
the  dam  at  Joliet,  along  the  left  bank  of  the  Les  Plaines  as 
far  as  to  the  flats  below  Adams  dam,  to  prevent  overflow 
when  the  sluices  at  Joliet  are  opened  to  their  full  extent.” 
Page  21,  par,  2 : 

“There  is,  then,  no  engineering  difficulty,  or  any  apparent 
reason  why  the  construction  proposed,  with  slight  modifi- 
cations that  would  not  materially  increase  the  estimates,  will 
not  satisfactorily  subserve  the  pur])ose  of  a navigable  channel 
as  fai’  as  the  mouth  of  the  Kankakee.”  (Abst.,  ))]).  951-2.) 

“The  route  will  be  navigable  at  all  stages  l)elow  a stage 
corresponding  to  a discharge  of  from  about  30,000  to  35,000 
cubic  feet  per  second,  or  under  all  ordinary  conditions  of  the 
river,  the  extreme  floods  occurring  at  rare  intervals,  and  then 
being  of  short  duration.”  (P.  21,  ])ar.  7.)  (Abst.,  p.  952.) 

(This  report  was  written  in  1890  on  the  survey  of  1889,  the  year 
the  Prainage  Canal  Act  was  passed  and  l)efore  any  work  on  the 
Drainage  Canal  was  done,  and  is  chiefly  taken  u])  with  arguments 


25(1 


against  the  (vlTK'ago  Drainage  (•anal,  wliieli  lias  since  been  con- 
structed.) 

‘‘Tlie  inci'CAised  discharge  on  account  of  the  benefits  to  navi- 
gation stated  above  tvould  he  desirable  only  during  the  low- 
nmter  stages,  but  the  discharge  is  proposed  to  be  constant, 
wbetber  it  be  beneficial  or  barinful.  ^ (P.  27,  par.  9.) 

‘‘Granting  the  necessity  for  a channel-way  of  large  capa- 
city across  the  Chicago  Divide,  a narrow  and  deep  channel 
with  a more  or  less  rapid  current  is  not  of  the  character  de- 
manded by  Western  river  navigation.  The  heavy  husimess  of 
these  rivers,  especially  of  the  Mississippi  and,  Ohio,  is  trans- 
acted by  barges  and  towboats,  or  by  wide,  flat-bottomed  steam- 
boats of  comparatively  light  draught.  If  any  channel,  there- 
fore, of  materially  greater  capacity  than  the  minimum  herein 
estimated  for  be  constructed  by  the  United  States  Govern- 
ment across  the  Chicago  Divide,  it  would  be  infinitely  better 
for  purpose  of  commerce  and  navigation  that  it  should  be 
doubled  or  trebled  in  width,  with  the  locks  suitably  increased 
in  span  and  length  to  accommodate  powerful  towboats  with 
their  full  tows  than  that  it  should  be  restricted  in  width  and 
made  so  deep,  with  a more  or  less  obstructive  current  there- 
in.” (P.  32,  par.  2.) 

“This  artificial  discharge  is  not  necessary  for  navigation 
anywhere  along  the  line,  and  cannot  be  said  to  benefit  navi- 
gation anywdiere  to  such  an  extent  as  to  justify  the  United 
States  Government  assuming  responsibility  for  flowage  dam- 
age caused  by  it.”  (P.  34,  par.  1.) 

C 0 mm  e rci al  Advantages. 

“This  route  has  invited  attention  as  a practicable  locust 
for  a water-way  between  the  Great  Lakes  and  the  Mississippi 
Eiver  for  many  years,  and  its  advantages  have  been  so  often 
reported  to  Congress  that  anything  herein  said  would  be  mere 
repetition.  It  is  sufficient  to  say  that  the  minimum  channel 
herein  estimated  u]>on  will  open  a channel  of  commerce  with 
a maximum  annual  capacity  of  29,000,000  tons  between  the 
Great  Lakes,  with  its  terminus  at  their  greater  port,  and  a 
system  of  navigable  rivers  penetrating  one-half  of  the  States 
and  Territories  of  the  Union,  with  a total  navigable  length 
equal  to  more  than  half  the  circumferenice  of  the  globe.”  (P. 
34,  par.  2.) 

***** 


Report  of  Assistant,  L.  L.  Wheeler. 

“The  Mud  Lake  Valley  was  originally  separated  from  the 
Des  Plaines  Kiver  by  a low  bank  raised  probably  l)y  the  river 


itsoir.  1^his  bank,  was  (*iit  atid  lli(‘  (*ily  liaiS  since;  l)(;(;n  (;n- 
^aged  in  an  effort  to  i)revent  the  water  of  the  Des  Idaines 
I\iver  (‘oining-  down  tlie  West  Fork  and  carryirig  the  sewage 
into  the  lake. 

“A  dam,  known  as  the  Ogden  Dam,  has  been  tmilt  near 
Snnmiit  across  the  Ogden  Ditcli,  where  it  leaves  the  Des 
Plaines  lliver,  the  crest  being  al)out  11  feet  above  city  datmn. 
The  Hoods  come  over  the  dam,  and  over  the  adjacent  banks, 
and  How  out  to  the  lake  through  the  Chicago  lliver,  carrying 
witli  them  the  accumulated  sewage  which  the  feeble  current 
created  by  the  pumpis  had  not  been  able  to  remove.  The  caual 
drains  the  country  south  and  east  of  it,  and  when  the  amount 
of  storm  weather  is  large  it  overtops  the  lock-gates  at  Bridge- 
port, wdiich  are  then  opened  and  the  Hood  Hows  out  to  the 
lake,  through  the  river.”  (P.  40,  pars.  4 and  5.)  (Abst.,  p. 
1276.) 

‘‘The  proposed  water-way  between  Bridgeport  and  Summit 
could  follow  the  line  of  the  present  canal,  the  West  Fork  and 
Ogden  Ditch,  or  a line  intermediate  between  the  two,  l)ut  it  is 
necessary  to  take  into  account  the  local  conditions  and  to  pro- 
vide for  preventing  the  waters  of  Des  Plaines  Kiver  going  to 
Lake  Michigan,  through  the  Chicago  or  Calumet  Pivers,  carry- 
ing with  them  the  sewage  of  the  city  of  Chicago. 

“From  Summit  to  Sag  Bridge  the  pro])osed  route  follows 
the  valley  of  the  Des  Plaines  Diver,  which  is  from  one-half  to 
three-fourths  mile  wide,  entering  the  bed  of  the  river  about 
three  miles  below  Summit.  The  river  from  Summit  to  below 
Sag  Bridge  varies  greatly  in  width  and  depth.  This  portion 
of  the  river  is  known  as  the  12-Mile  Level.  The  low  water 
How  of  the  river  above  Summit  is  very  small,  and  the  maxi- 
mum measured  high-water  discharge  about  10,000  cubic  feet 
per  second.”  (600,000  cu.  ft.  ])er  minute.)  (P.  40,  pars.  6 
and  7.)  (Abst.,  ]).  1276.) 

“After  the  junction  of  the  (Hiicago  and  Sag  routes  the  line 
follows  the  bed  of  the  Des  Jdaines  Diver  about  two  miles, 
when  the  up-lift  of  limestone  is  met  just  above  Lemont.  Fi’om 
this  point  to  near  Lockport  the  pro])osed  line  lies  in  limestone 
rock  overlaid  by  a thin  covering  of  soil,  in  many  ])laces  the 
rock  being  entirely  bare.  The  valley  varies  from  one-half 
to  one  mile  wide,  and  through  this  the  river  winds  at  lower 
stages  in  a bed  from  one  to  three  feet  deep.  At  higlier  stages 
it  spreads  out  over  the  valley,  which  is  mainly  used  for  pas- 
ture. 

“From  Lockport  to  Joliet  the  valley  is  wide  and  the  de- 
clivity great,  the  total  fall  of  the  river  being  about  35  feet  in 
three  and  one-half  miles.  The  present  canal  enters  the  Des 
Plaines  Diver  from  the  east  near  the  northern  limits  of  Joliet 
in  the  pool  formed  by  Dam  No.  1.  At  this  dam  a lock  with  a 


58 


lift  of  .10  feet  locks  tlie  koats  down  to  tlie  pool  formed  hy  Dam 
No.  2.  The  canal  leaves  the  river  from  this  pool  through  a 
guard-lock  and  continues  in  embankments  along  the  right  bank 
of  the  river.  Below  Dam  No.  2 is  a dam  built  for  water- 
power, known  as  Adams  Dam.  The  fall  over  the  several  dams 
at  low  water  is  as  follov/s:  Dam  No.  1,  10  feet;  Dam  No.  2, 
8 feet;  Adams  Dam,  0 feet.  The  lengtlivs  of  the  dams  in  the 
order  named  is  250,  200  and  120  feet,  respectively.  Below 
Adams  Dam  the  river  continues  two  miles  in  a series  of  rapids 
to  Lake  Joliet,  the  total  fall  of  this  portion  at  low  water  be- 
ing 10  feet.  The  total  fall  from  Lake  Michigan  to  Lake 
Joliet,  both  being  at  lovv^  water,  is  76  feet.”  (P.  41,  pars.  6 
and  7.) 

^M.jake  Joliet  is  about  5 miles  in  length  and  from  400  to  800 
feet  wide.  It  is  simply  a gorge  cut  in  the  rock  to  an  unknown 
depth,  the  rocky  shores  rising  from  30  to  60  feet  above  the 
water.  The  depth  of  water  varies  from  8 to  16  feet,  but  the 
lake  is  largely  filled  with  sewage  deposit.  At  the  lower  end 
of  Lake  Joliet,  Treat’s  Island  divides  the  river  into  two 
channels.  The  beds  of  these  channels  appear  to  be  composed 
of  large  boulders,  sand,  and  gravel,  although  rock  in  place 
may  be  the  foundation  of  the  island  itself.  Borings  along  the 
left  channel  show  that  solid  rock  does  not  rise  above  the  bot- 
tom of  the  proposed  water-way.  A short  distance  below  the 
island  the  river  bed  is  smooth  rock,  and  limestone  rock  out- 
crops on  both  banks.  The  total  fall  by  Treat’s  Island  at  low 
water  is  10  feet  in  14  miles  by  the  left  channel. 

‘‘From  Treat’s  Island  to  the  mouth  of  the  Kankakee  Eiver 
■the  Des  Plaines  flows  between  high  fixed  bridges,  the  low 
water  width  being  from  300  to  600  feet.  At  the  mouth  of  Du- 
Page  river  is  a fall  of  about  3 feet  in  a distance  of  about  1 
mile.  The  bed  of  the  river  is  either  rock  or  a thin  layer  of 
bowlders  and  gravel  overlaying  rock.  * * * 

“The  Illinois  Elver  is  formed  by  the  union  of  the  Des 
Plaines  and  Kankakee  Elvers,  the  latter  contributing  much 
the  greater  volume  of  water.  Commencing  in  the  Des  Plaines 
one  mile  above  the  junction,  and  extending  one  mile  below, 
are  rapids,  the  total  fall  being  8 feet  at  low  water.  The  river 
bed  in  these  rapids  is  limestone  rock.  * * * The  low- 

water  discharge  does  not  much  exceed  1,000  cubic  feet  per 
second,  including  amount  pumped  at  Bridgeport,  while  the 
high-water  discharge  is  about  70,000  cubic  feet  per  second.” 
(P.  42,  pars.  2,  3 and  4.) 

“Upon  reaching  Chicago  with  the  levels  and  connecting 
with  city  bench  marks,  Chicago  datum  was  found  to  be  151.5 
feet  above  Hennepin  datum.  This  value  differs  .8  of  a foot 
(9.6  inches)  from  previous  ones,  and  the  entire  distance  teas 


relcveled  in  liopes  of  finding  the  cause  oC  this  discrepancy, 
bnt  no  appreciable  error  was  found.  Idie  previous  value  of 
the  relation  of  the  two  datums  was  152.3  feet/’  (Id.,  p.  43.) 

From  lleport  of  1890,  Capt,  W.  L.  Marshall,  Ex.  Doc.  264. 

‘‘At  the  lower  end  of  Lake  Joliet,  Treat’s  Island  divides 
the  river  into  two  channels.  The  beds  of  these  channels  ap- 
pear to  be  composed  of  large  bowlders,  sand  and  gravel,  al- 
though rock  in  place  may  be  the  foundation  of  the  island  itself. 
Borings  along  the  left  channel  show  that  solid  rock  does  not 
rise  above  the  bottom  of  the  proposed  water-way.  A short 
distance  below  the  island  the  river  bed  is  smooth  rock,  and 
limestone  rock  outcrops  on  both  banks.  The  total  fall  by 
Treat’s  Island  at  low  water  is  10  feet  in  14  miles  by  the  left 
channel. 

“From  Treat’s  Island  to  the  mouth  of  the  Kankakee  Kiver 
the  Des  Plaines  flows  between  high,  fixed  banks,  the  low  water 
width  being  300  to  600  feet.  At  the  mouth  of  DuPage  Kiver 
is  a fall  of  about  3 feet  in  a distance  of  about  one  mile.  The 
bed  of  the  river  is  either  rock  or  a thin  layer  of  bowlders  and 
gravel  overlaying  rock.  This  portion  of  the  river  is  subject 
to  backwater  from  the  Kankakee,  the  highest  waters  being 
due  to  that  cause.  There  is  very  little  land  subject  to  over- 
flow along  this  portion  of  the  route.”  (Page  42.) 

“The  project  for  reaching  LaSalle  from  Lake  Michigan 
with  the  proposed  water-wa}^  includes  the  excavation  of  a 
level  cut  through  the  divide  from  Lake  Michigan;  the  con- 
struction of  a guard-lock  to  prevent  the  flood  tvaters  of  the 
Des  Plaines  River  from  going  to  Lake  Michigan;  the  construc- 
tion of  suitable  gates  and  weir  above  Lockport  to  regulate  the 
amount  of  water  flowing  in  the  canal ; the  construction  of  re- 
taining walls,  locks  and  dams  to  carry  the  canal  down  the  slope 
past  Joliet  to  Lake  Joliet;  and  the  improvement  of  the  Des 
Plaines  and  Illinois  Rivers  by  means  of  locks  and  dams  and 
by  excavation.”  (Id.,  p.  45.) 

The  borings  in  the  river  given  in  this  report  (pages  69  to  72) 
are  all  platted  on  McCullough  Exhibit  2a,  and  are  shown  to  occur 
above  Joliet,  above  Lockport,  above  Lemont,  and  between  there 
and  4Villow  Springs,  in  the  smallest  and  shallowest  reach  of  the 
river,  and  to  have  been  made  between  July  28,  1889,  and  August 
1889,  and  to  have  shown  water  in  the  river  as  follows: 


Deptli 


of  Water 
feet. 


in 


No. 

No. 

No. 

No. 

No. 

No. 

No. 

No. 

No. 

No. 

No. 

No. 

No. 

No. 

No. 


4G, 

47 

48, 

49, 

50, 
51  , 
52, 
55, 
54 

55. 

56. 

57. 

58. 

59. 

60. 


6. 

9. 

8.5 

6. 

8. 

8.7 

5. 
7.1 

7. 
8.5 

8. 

6. 

11.5 

10.4 


15)110.2 

or  an  average  of  7.34  feet  depth.  (Abst.,  pp.  654-5.) 

Ex.  Doc.  No.  264  (Report  of  Marshall),  pp.  119-128. 

‘‘VI. — List  of  merchant  steamboats  navigating  the  Missis- 
sippi Biver  and  its  tributaries  with  a depth  less  than  7 feet. 

‘‘Data  obtained  from  the  twentieth  annual  official  list,  pub- 
lished 1889.^’ 


201 


(Tlie  report  gives  a list  of  087  })oats,  of  which  we  give  liere  only 
the  boats  having  a depth  of  2.5  feet  or  less.) 

Tonnage. 

Gross  Net 

Name — Tons  Tons  Length  Breadth  Depth 


Advance  

, ...  82.83 

59.79 

70.0 

18.0 

2.0 

Alert 

. . .158.98 

158.98 

130.0 

24.1 

2.2 

Belgrade  

. ..  89.26 

89.26 

96.0 

18.0 

2.5 

Bob  Henry 

...  80.24 

55.44 

91.4 

16.6 

2.4 

Border  City  

...  96.96 

88.86 

108.0 

21.0 

2.5 

Boston  

...  70.77 

57.10 

65.0 

16.0 

2.5 

Caney  Fork 

...  83.90 

83.90 

126.0 

19.0 

2.0 

Clara  

...  60.95 

60.95 

87.0 

14.0 

2.5 

Claribel  

...  71.48 

56.66 

lOO.O 

18.8 

2.0 

Eli 

. . .140.25 

120.25 

106.0 

21.5 

2.5 

Ella 

. . .284.70 

184.70 

148.0 

28.0 

2.5 

G.  H.  Van  Etten 

. . .119.30 

119.30 

130.0 

24.0 

2.0 

General  Miles 

...  72.45 

72.45 

95.2 

17.3 

2.1 

Hettie  Mason 

...113.94 

56.70 

86.0 

20.5 

2.5 

Jimmie  B 

...  58.32 

58.32 

97.3 

20.0 

2.3 

Pearl  *. . 

...  73.98 

73.98 

140.0 

22.0 

2.0 

R.  E.  Phillips 

...  84.06 

79.60 

110.8 

20.0 

2.3 

Two  Brothers 

...  69.13 

48.13 

91.9 

16.0 

2.5 

Undine  

...  72.90 

72.90 

112.0 

30.0 

2.0 

Vienna  

...  73.17 

73.17 

89.6 

24.0 

2.3 

W.  P.  Bishop 

...  69.09 

48.09 

93.9 

16.5 

2.5 

William  Wagner 

...  52.25 

52.25 

100.0 

17.0 

2.0 

At  that  time  there  were  22  such  boats  in  commission,  with  length 
from  148  feet  maximnm  to  65  feet  minimum;  breadth  ranging  from 
30  feet  maximum  to  14  feet  minimum ; depth  2.5  to  2 feet  and  net 
tonnage  ranging  from  184.70  tons  maximum  carried  by  the  longest 
l)oat  to  56.60  tons  carried  by  a boat  100  feet  long.  (Abst.,  pp.  656- 
7-8-9-60.) 

1900. — Bepoht  of  Chief  Engineers,  1900,  Part  V,  Report  of  Board 
OF  Engineers,  Col.  d.  W.  Barlow,  Chairman: 

^‘If  the  route  by  the  (biicago  River  and  Drainage  Canal  be 
adopted,  there  remains  but  little  more  than  half  of  the  work 
involved  in  the  eight-foot  project  of  1890,  for  the  Govern- 
ment now  to  take  in  hand  in  order  to  complete  the  improve- 
ment, since  the  estimated  cost  of  this  portion  of  the  channel 
(about  28  miles)  was  nearly  $14,000,000.  By  the  Calumet  and 
Sag  route  only  aliout  101  miles  of  the  Drainage  Canal  can  lie 
utilized.”  (Page  2489,  Par.  1.) 

^‘But  while  the  Drainage  Cbnal  covers  about  half  of  the 


Avork  involved  in  tlie  project  by  way  of  Chicago  liiver,  it  at 
the  same  time  has  turned  an  additional  flow  into  the  Des 
Plaines  Itiver,  materially  changing  its  low  water  regimen. 
The  requ i remen tsi  of  this  flow  at  present  are  5,000  cubic  feet 
per  second,  while  the  limit  of  10,000  is  probably  more  nearly 
the  flow  that  will  have  to  be  dealt  with,  at  least  not  long  after 
the  completion  of  the  present  project.  As  nearly  as  can  now 
be  estimated,  this  flow  gives  a water  line  indicated  upon  the 
accompanying  profile  and  the  contrast  is  shown  with  the  low- 
water  conditions  hitherto  existing.  The  steep  slope  shown  on 
the  profile  indicates  that  with  so  large  a volume  of  discharge 
the  velocity  of  the  current  would  be  too  great  for  up-stream 
navigation  in  an  open  river.  This  might  be  overcome  to  a 
great  extent  by  canalizing  the  river  by  high  dams  entailing 
great  expenditures  for  the  necessary  works,  as  well  as  for  the 
purchase  of  lands  overflowed,  the  cost  of  which  cannot  even 
be  approximated  from  present  information.”  (P.  2489,  par.  2.) 

‘‘At  the  foot  of  the  page,  the  last  paragraph : ‘At  the  Mar- 
seilles Eapids  a canal  about  7.4  miles  in  length  is  required  to 
overcome  a steep  slope  there  encountered,  and  it  is  proposed 
to  make  the  section  not  less  than  160  feet  wide  at  bottom,  and 
10  feet  deep,  in  order  to  correspond  to  an  eight-foot  navigation 
in  the  river  channel  at  low  water.’  * * (Page  2490, 

par.  1.) 

“*  * * From  the  head  of  the  canal  the  route  will  follow 

the  channel  of  the  river  to  a point  below  and  near  the  mouth  of 
the  Kankakee.  Similar  conditions  with  respect  to  depth  and 
Amlocity  of  current  will  be  met  in  this  stretch  as  in  that  be- 
tween Utica  and  Marseilles,  and  an  estimate  for  both  excava- 
tion and  bank  revetment  is  provided.  From  the  head  of  this 
section  a canal  is  necessary  to  reach  the  Joliet  Basin,  with 
locks  to  overcome  a fall  of  54  feet  at  low  water  in  a distance 
of  17  miles,  provision  being  also  necessaiy  for  fluctuations  of 
leA^el  at  the  upper  lock.  The  estimates  of  the  Board  are  based 
upon  overcoming  this  difference  of  elevation  by  five  locks,  but 
further  stiidv  mav  result  in  a reduction  of  the  number.”  i P. 
2490,  par  2.)'  (Abst.,  pp.  1125-6.) 

1901. — Eepoet  of  the  Chief  of  Engineers,  1901,  Part  IV,  pp. 

3050-3060. 

Eeport  of  Board  of  Engineers,  Col.  J.  W.  Barlow,  Chairman: 

“While  the  Upper  Illinois  and  Des  Plaines  Elver  are  at 
present  non-naAngable”  (plainly  referring  to  naAugability  by 
the  large  class  of  steam  vessels  drawing  seven  feet  and  over, 
to  icliich  the  rest  of  this  report  refers)^  “the  commerce  of  the 
Illinois  and  Michigan  Canal,  which  has  been  constructed  in  the 


2(\:\ 


valleys  ol*  iliese  ]-ivers,  may  be  takcai  to  i-ej)i*(‘sent  the  present 
(‘ommeiTe  of  such  a route/’  (Abst.,  p. 

11)00. — l\KPoirr  OK  Khnst  Boaiu)  on  14-Fket  Watekvvav.  II.  R.  I)o(‘. 

both  Congress.,  1st  Session: 

PRESENT  IMPROVEMENTS. 

^‘Tlie  total  distance  from  Lake  Michigan  to  Grafton,  at  the 
mouth  of  the  Illinois,  is  327.28  miles.  Beginning  in  Chicago 
River,  6 miles  from  lake,  the  Illinois  and  Slichigan  Canal  ex- 
tends to  LaSalle,  near  the  head  of  navigation  on  the  Illinois,  a 
distance  of  96.7  miles.  This  canal  has  lost  its  traffic  to  such 
an  extent  that  it  has  ceased  to  produce  a revenue  and  is  fall- 
ing into  decay,  which  bids  fair  to  soon  become  total.  It  is 
barely  navigable  for  vessels  drawing  41  feet.  For  certain 
purposes  it  has  been  replaced  as  far  as  Lockport  by  the  Chi- 
cago Drainage  Canal,  as  will  appear  further  on.  Below  La- 
Salle the  Illinois  River  has  been  improved  by  the  State  of 
Illinois,  with  locks  and  dams,  at  Henry  and  Copperas  Creeks, 
covering  a distance  of  87.7  miles,  over  which  'the  State  charges 
tolls.  The  remaining  136.8  miles  to  Grafton  has  been  im- 
proved by  the  United  States  with  locks  and  dams  at  Lagrange 
and  Kampsville.  The  project  under  which  the  work  of  the 
State  and  of  the  United  States  was  done  in  the  Illinois  River 
contemplates  a depth  of  7 feet,  the  locks  being  350  feet  by  75 
feet.  Much  dredging  remains  to  be  done  to  complete  this 
project  in  the  Illinois  River.  It  was  intended  to  extend  these 
dimensions  of  waterway  to  Lake  Michigan  to  replace  the  obso- 
lete canal,  but  when  the  State  of  Illinois  decided  to  authorize 
the  Chicago  Drainage  Canal  iz  abandoned  the  project  for  a 7- 
foot  navigation  and  directed  the  removal  of  its  dams  in  the 
Illinois  River,  at  the  same  time  demanding  that  the  dams  con- 
structed by  the  United  States  be  removed.  It  declared  in 
favor  of  a channel  to  be  constructed  by  the  United  States  not 
less  than  14  feet  deep  from  the  end  of  the  drainage  canal  at 
Lockport  to  LaSalle,  ‘to  be  designed  in  such  manner  as  to 
permit  future  development  to  a greater  capacity.’  (See  joint 
resolutions,  adopted  May  28,  1889,  and  Atay  27,  1897,  copies 
hereto  appended,  Ayipendixes  B and  C.) 

“None  of  the  dams  have  as  yet  been  removed,  but  by  joint 
resolution  approved  April  21,  1904,  Congress  authorized  the 
Sanitary  District  of  Chicago,  at  its  ovm  expense,  to  lower  the 
Government  dams,  and  on  the  23d  of  Alay,  1904,  permission 
was  granted  by  Secretary  of  AVar  to  that  body  to  lower  the 
dams  2 feet,  upon  condition  that  it  install  such  movable  crests 
as  should  enable  the  dams  to  be  maintained  at  their  present 
height  during  low  water  and  upon  the  further  condition  that 
it  hold  the  United  States  harmless  from  any  claims  for  dam- 


nf»es  vvliicli  result  from  rlie  operation  of  tliese  movable 

crests.”  (P.  D.)  (Ahst.,  p.  1700.) 

CinCAGO  DRAINAGE  CANAL. 

‘‘P>esi(les  being’  a bigliway  of  commerce,  the  Illinois  and 
Mi(*bigan  Canal  has  from  the  beginning  served  to  cany  off 
the  sewage  of  Chicago.  The  Chicago  River  has  always  been 
the  main  receptacle  of  the  sewage  of  the  city,  and  as  the  vol- 
ume of  sewage  lias  increased  with  the  growth  of  the  city  addi- 
tional facilities  for  discharging  it  into  the  canal  have  become 
necessary.  AVhen  the  canal  was  opened  in  1848,  a pumping 
plant  was  established  at  Bridgeport,  where  it  joins  the  Chi- 
cago River.  In  1800  the  capacity  of  this  plant  was  nearly 
doubled,  being  increased  to  about  400  cubic  feet  per  second. 
Later  on  the  summit  level  of  the  canal  was  cut  down  so  as  to 
provide  a continuous  gravity  flow  from  the  Chicago  River  and 
Lake  Michigan.  The  work  Vvms  completed  in  1871  and  the 
pumping  plant  abandoned.  In  1883  a new  pumping  plant  was 
brought  into  use,  having  a nominal  capacity  of  750  cubic  feet 
per  second,  but  it  soon  became  evident  that  the  discharging 
capacity  of  the  old  canal  was  quite  inadequate  to  carrying  the 
volume  of  water  required  to  dilute  the  sewage  and  that  a new 
and  greatly  enlarged  channel  must  be  provided.  The  Chicago 
Drainage  Canal  was  then  constructed  and  was  brought  into 
use  in  January,  1900.  It  has  not  yet  been  completed  to  its  full 
capacity  as  designed.  When  fully  completed  it  will  have  a 
caj)aoity  of  about  10,000  cubic  feet  per  second,  flowing  at  a low 
velocity.  (Id.,  p.  10.)  (Abst.,  pp.  1127-8.) 

PLAN,  LOCKPORT  TO  UTICA.  (P.  16,  ef  seq.) 

‘‘Between  Lockport  and  Utica,  5 miles  above  LaSalle,  the 
fall  of  the  water  surface  is  about  136  feet  in  a distance  of  63.5 
miles,  while  between  Utica  and  Grafton  the  fall  is  but  33  feet 
in  a distance  of  229.5  miles  (see  profile  sketch  hereto  attached.) 
The  method  of  improvement  for  the  former  must  be  by  locks 
and  dams.  In  general  terms  two  routes  are  available,  viz.,  the 
river  route  and  that  of  the  old  Illinois  and  ]\[ichigan  Canal. 
The  Board  decided  to  adopt  the  river  route  because  the  greater 
width  would  afford  better  facilities  for  navigation,  and  be- 
cause subsequent  enlargement  could  be  executed  at  less  cost 
and  without  interfering  with  navigation  ; also  because  a water- 
way by  that  route  could  be  constructed  at  less  cost  in  the  first 
instance  and  the  annual  charges  for  maintenance  would  be 
less.  In  reaching  this  conclusion  a careful  investigation  wms 
made  of  the  velocities  to  be  expected  at  the  higher  stages  in 
various  parts  of  the  reach.  It  was  found  that  they  would  be 
prohibitive  only  at  Marseilles  and  at  Joliet.  At  each  of  these 
places  a canal  about  3 miles  long  is  proposed.  At  several  other 


_ 205 


pl«u*es  foi*  short  distiuioes  veloeiiios  of  2). 5 to  4 niiles  j)(‘r  hour 
luny  bo  ox[)0(*to(i,  but,  although  soincwhat  obstruoti vo,  thoso 
arc  not  ])rohibitivo,  and  as  the  Hoods  wlii('li  (-ause  them  are  of 
short  duration  and  occur  only  at  intervals  the  inconvenience 
is  believed  to  be  of  small  impoi-tance. ” (Abst.,  [)p.  000-1.) 

^‘tiie  river  route  vs.  the  canau  route  erom  uttca  to  lockport.’’ 

(Page  39,  par.  7.) 

^^Prom  Utica  to  Lockport  it  is  possible  to  construct  a deep 
waterway  either  by  canalizing  the  Illinois  and  Des  Plaines 
rivers,  or  by  building  an  overland  canal  along  the  line  of  the 
old  Illinois  and  Michigan  Canal.  In  either  case  deviations 
would  be  necessary  along  certain  portions  of  the  lines,  bnt  the 
above  descriptions  indicate  the  general  location  of  the  two 
routes.’’ 

‘UAs  a result  of  these  investigations,  the  following  argu- 
ments were  summarized  against  the  advisability  of  construct- 
ing a 14-foot  waterway  along  the  line  of  the  Illinois  and  Mich- 
igan Canal : 

The  present  canal  is  admirably  located,  for  a canal  of 
60-foot  width  and  G-foot  depth,  but  at  the  Kankakee  bluffs, 
near  the  junction  of  the  Des  Plaines  and  Kankakee  Rivers,  and 
at  the  bluff  which  is  located  a short  distance  above  LaSalle, 
the  canal  could  not  he  increased  to  a width  of  160  feet,  except 
at  immense  cost,  as  it  ivoidd  he  necessary  to  cut  away  the 
sides  of  the  bluff sd^  (P.  40.) 

^^2.  Expensive  aqueducts  would  have  to  be  constructed 
over  Aux  Sable  River,  Nettle  Creek,  Fox  River,  and  the  Little 
Vermillion  River.  On  account  of  the  increased  depth,  the 
headroom  under  the  canal  would  be  reduced  at  least  8 feet, 
making  their  maintenance  a questionable  proposition.  For 
the  same  reason  most  of  tlie  17  existing  culverts  of  various 
types  would  become  inverts,’  and  their  maintenance  would 
be  a ceaseless  expense  and  annoyance.” 

There  are  at  ])resent  15  spillways,  most  of  which  are 
necessary  on  account  of  the  reception  of  creeks  into  the  canal. 
New  spillways  would  have  to  be  built,  and  ('ontiniial  dredging 
Avould  be  necessary  in  their  vicinity,  on  account  of  the  sedi- 
ment brought  in  by  these  tributaries.” 

‘M.  About  twice  as  many  bridges  would  have  to  be  built, 
maintained  and  operated  along  the  canal  route  as  along  the 
river  route.  Twenty  bridges  would  have  to  be  built  or  rebuilt 
by  the  river  route  and  39  by  tlie  canal  route  between  Lockport 
. and  LaSalle.” 

Slope  walls  or  bank  protection  of  some  kind  would  be 
necessary  for  practically  the  entire  length  of  the  canal.  This 
would  be  expensive  in  the  first  cost,  and  require  frequent  re- 
pairs.” 


‘^6.  An  interurban  electric  railway  has  been  built  parallel 
to  and  adjoining  the  canal  at  several  places,  amounting  to  a 
total  distance  of  7.7  miles.  Streets  and  highways  have  been 
constructed  along  the  canal  for  a distance  of  16.5  miles.  If 
the  canal  was  enlarged,  new  sections  of  right  of  way  would 
have  to  be  secured  and  the  railways,  streets  and  highways  re- 
built for  these  distances.’’ 

‘‘7.  The  towns  of  Morris,  Marseilles  and  Ottawa  have  been 
built  up  along  both  sides  of  the  canal,  and  the  purchase  of  the 
additional  right  of  way  necessary  for  the  widening  of  the 
canal  would  be  expensive.  ’ ’ 

^^8.  The  amount  of  excavation  would  be  greater  along  the 
line  of  the  canal  than  in  the  river.  As  a rule  the  present  water 
surface  could  not  be  raised,  which  means  that  there  would  be  8 
feet  of  excavation  below  the  bed  of  the  present  canal.  In  addi- 
tion to  this  the  existing  canal  bank  on  one  side  would  have  to 
be  removed,  and  the  excavation  outside  of  the  present  canal 
would  be  more  than  8 feet.  Kock  would  probably  be  encoun- 
tered in  as  many  miles  as  in  the  adopted  river  project.” 

^^9.  Navigation  would  be  much  more  inferior  in  a canal  160 
feet  vdde  than  in  an  open  river  400  to  800  feet  wide.  The 
whole  river  would  not  be  available  for  boats  drawing  12  or  13 
feet,  but  boats  of  less  draft  could  utilize  the  entire  width  over 
a large  portion  of  the  stream.” 

‘^From  a consideration  of  the  arguments  given  above  it  was 
concluded  that  the  river  route  is  preferable  for  the  following 
reasons : 

^ n . It  is  the  cheaper  in  first  cost. 

‘^2.  It  can  be  maintained  at  less  cost. 

''3.  It  will  afford  better  navigation  on  account  of  its 
greater  width. 

^‘4.  Subsequent  enlargement  can  be  executed  at  less  cost 
and  without  interfering  with  navigation.” 

‘^VELOCITY  OF  CUERENT  IN  THE  UPPER  ILLINOIS  AND  LOWmR  DES 
PLAINES  RIVERS  DURING  EXTREME  HIGH  WATER.” 

‘Mn  order  to  ascertain  whether  the  current  which  obtain  in 
the  upper  Illinois  and  lower  Des  Plaines  Kivers  during  ex- 
treme high  w^ater  would  prohibit  navigation  at  such  times,  the 
velocities  were  computed  at  16  points  between  Utica  and  Joliet 
for  the  highest  water  or  record  for  each  station.  These  re- 
sults, which  are  shown  in  the  following  table,  are  based  upon 
the  following  held  measurements,  and  are  entirely  independ- 
ent of  any  assumptions  or  theories. 

Page  41 : 


207 


]\1EAN  VKLOCITIKS  OK  CUUliKNT  IN 


UPI’Kll  ILIJNOI^  AND  hOWKil  DKS 


I’LAINKS  HIVKHS  DUKINO  IIKOI  WAI’KH. 


Location 

Utica  highway  bridge 

Ottawa  highway  bridge 
P'oot  of  Moore’s  Island 

3.6  miles  below  Marseilles  dam 

2l4  miles  below  Marseilles  dam 

1 mile  below  Marseilles  dam 

lJ/2  miles  above  Marseilles  dam 

miles  above  Marseilles  dam 

700  feet  below  Seneca  highway  bridge 
Morrris  highway  bridge 

1 mile  below  mouth  of  Kankakee  River 
Kankakee  Cut-off 

One-fourth  mile  below  foot  of  Treat’s 
Island 

miles  below  Brandon  bridge 
Jefferson  St.  Bridge,  Joliet 


Area 

Dis- 

Mean 

Miles 

of 

charge 

Velocity 

from 

cross 

cubic 

Graf- 

Year 

Eleva- 

section 

feet 

Feet 

Miles 

ton 

tion 

.square 

per 

per 

per 

Let 

second  second 

hour 

229 . 7 

1892 

468.4 

17,014 

70,952 

4.17 

2.8 

Discharge  does  not  include  bottom  overflow. 

239 . 8 

1892 

475 . 3 

16,307 

85,000 

5.21 

3.6 

242.0 

1892 

476.6 

13,784 

71,300 

5.17 

3.5 

Discharge  does  not 

include  bottom  overflow. 

243.4 

1892 

477.3 

ir,900 

70,000 

6.30 

4.3 

Three- 

-fourths  mile 

below 

Bell’s 

Island. 

244.7 

1892 

479.3 

11,784 

75,000 

6.36 

4.3 

One-fourth 

mile  above  Bell’s  Island. 

247.5 

1892 

493.5 

14,736 

74,500 

5.06 

3 . 5 

Foot 

of  Ballard’s  ' 

Island. 

248.5 

1892 

495.1 

12,320 

74,500 

6.05 

4.1 

One-fourth 

mile  above  Ballard’s 

Island. 

250.5 

1892 

497.9 

12,736 

74,500 

5 . 85 

4.0 

2 miles  above  Ballard’s  Island. 

252.6 

1892 

502.3 

13,552 

74,000 

5.46 

3.7 

263.3 

1892 

507.6 

16,079 

49,116 

3.06 

2.1 

Discharge  does  not  include  bottom  overflow. 

271.9 

1892 

510.1 

16,080 

73,730 

4.50 

3.1 

274.9 

1904 

511.1 

7,856 

28,700 

3 . 65 

2.5 

278.9 

1904 

513.6 

6,976 

22,000 

3.15 

2.1 

284.1 

1904 

517.6 

6,608 

22,000 

3.33 

2.3 

287.9 

1904 

533.6 

2,016 

22,000 

10.91 

7.4 

‘‘This  table  is  designed  to  show  the  greatest  velocities  which 
occur  from  Utica  to  Joliet.  A study  of  the  table,  in  connec- 
tion with  the  profile,  indicates  that  from  Utica  to  the  foot  of 
Moores  Island,  a distance  of  12.3  miles,  the  maximum  velocity 
varies  from  2.8  to  3.6  miles  per  hour.  From  the  foot  of 
Moores  Island  to  the  middle  of  Bells  Island,  a distance  of  2.3 
miles,  the  velocity  increases  to  4.3  miles  per  hour.  From  this 
point  up-stream  the  velocity  continues  to  increase  as  we  ap- 
proach the  Marseilles  dam,  which  is  247  miles  from  Grafton. 
One  mile  below  the  dam  the  velocity  was  5 miles  per  hour. 
Just  below  the  dam  it  has  been  impossible  to  compute  the  veloc- 
ity, as  there  is  not  sufficient  data  on  hand,  but  it  was  probably 
not  less  than  7 miles  per  hour.  From  the  Marseilles  dam  to 
Seneca,  a distance  of  4.4  miles,  the  velocity  varies  from  3.5  to 
4.1  miles,  the  greater  value  being  found  at  only  one  section. 
From  Seneca  to  Patterson  Island,  at  the  head  of  Lake  Joliet, 
a distance  of  32.7  miles,  the  maximum  velocities  vary  from  2.1 
to  3.1  miles  per  hour.  There  are  two  exceptions  to  this,  viz., 
at  the  mouth  of  the  Des  Plaines  River  and  at  Treats  Island, 
where  it  is  impossible  to  compute  the  velocity,  as  there  are  not 
sufficient  data  on  hand.  It  would  probably  not  exceed  4 miles 
per  hour,  at  either  place,  for  a distance  of  about  one-half  mile. 


Proeeodiiig  irp-streain  from  Lake  Joliet  tlie  velocity  increases 
ip)  to  Dam  No.  1,  at  Joliet.  At  the  Jefferson  Street  Bridge 
the  computed  velocity  is  7 A miles  t)er  hour  for  the  flood  of 

v,m. 

‘^From  the  preceding  investigation  it  has  been  decided  that 
the  velocities  which  obtain  during  extreme  high  water  are  pro- 
hibitive only  below  the  Marseilles  and  Joliet  dams.  Under  the 
adopted  project  a canal  about  3 miles  long  has  been  provided 
along  eacli  of  these  sections.  The  velocity  from  the  Marseilles 
dam  to  Seneca,  viz.,  3.5  to  4.1  miles  per  hour,  is  obstructive  to 
navigation,  but  not  prohibitive,  and  as  these  floods  occur  only 
at  rare  intervals  and  are  of  short  duration,  it  is  not  consid- 
ered necessary  to  leave  the  river  bed  at  this  section.  The  same 
remarks  apply  to  the  section  just  below  the  proposed  canal  at 
Marseilles  and  to  the  short  sections  at  the  mouth  of  the  Kan- 
kakee River  and  at  Treats  Island.’’ 

3.  Depths  of  the  des  peaines. 

The  greatest  recorded  depth  of  the  Des  Plaines  in  the  16-mile 
tract  in  question  is  816  feet.  The  lowest  recorded  depth  is  none 
at  all  just  below  Dam  No.  1,  the  entire  river  being  turned  by  a side 
gate  into  the  canal. 

The  height  of  the  dam  is  10  feet.  See  Eng.  Report,  1890,  Ex*. 
Doc.,  264,  pp.  41-42 : ‘Mn  low  water  the  canal  took  the  whole  of  the 
river.”  (Ev.  Cooley,  Abst.,  p.  829)  ; (Ev.  Elwood,  Abst.,  p.  1110.) 
The  space  from  below  the  dam  to  the  mouth  of  the  DuPage  was 
substantially  without  water  in  low- water  periods,  owing  to  the  use 
of  the  entire  water  to  feed  the  canal.  This  is  no  evidence  as  to  the 
depth  of  the  Des  Plaines  itself. 

In  the  12-mile  level  the  lowest  depth  was  about  18  inches  in  ex- 
treme low  water.  (Cooley,  Abst.,  p.  807.) 

The  12-mile  level  began  at  the  range  line  between  12  and  13  East, 
north  of  Summit,  at  the  old  Portage  Slough,  right  at  the  Ogden 
Dam.  The  low-water  line  of  1883  was  established  by  Major  Ben- 
yaurd’s  survey  in  1883,  reported  in  U.  S.  Engineer’s  Reports  for 
1884.  (Cooley,  Abst.,  p.  814.) 

‘‘Water  gauges  were  established  at  10  different  points  be- 
tween Joliet  and  LaSalle  and  careful  readings  made  of  the 
height  of  water  surface  for  each  day  during  the  period  occu- 
pied by  the  survey.  * * * The  profile  of  the  river  bed 

was  determined  by  sounding  cross-sections  about  500  feet 


liO:) 

apart,  ox(*e[)t  in  ilio  dee})  water  pools,  tlirougiiout  the  entire 
(lis'tanee  (from  Joliet  to  JjaSalle).” 

(Ke])ort  of  (j}eo.  Y.  Wisner,  assistant  to  Major  Benynard, 
U.  S.  fJig.  liep.,  1884,  Vol.  Ill,  p.  IJdO.)  (deferred  to, 
Abst.,  p.  1119.) 

Suninian/  of  Cooley’s  Testimony,  as  to  Depths  and  Profiles. 

The  low-water  line  of  1883  was  established  from  the  record  kept 
at  those  gauges  and  from  intermediate  levels,  and  all  soundings 
made  in  the  river  bed  were  referred  to  this  low- water  line,  and  it 
has  been  the  standard  in  all  surveys  since  1883.  (Cooley,  Abst., 
p.  814.) 

Cooley  Exhibit  2 is  a map  accompanied  by  a profile  of  the  lies 
Plaines  Piver  from  Lockport  to  its  month.  It  is  on  a scale  of  1 
inch  to  the  mile  and  shows  the  course  of  the  river,  the  course  of 
tributaries  joining  the  river,  the  location  of  the  I.  & M.  Canal,  the 
topography  adjacent  to  the  stream  and  the  geographical  points  in 
the  territory  delineated.  It  is  correct. 

Cooley  Exhibit  3 is  a consolidated  profile  which  represents  all 
the  gauge  records  and  substantially  all  our  information,  including 
data  from  the  different  Government  engineers’  reports.  In  con- 
nection with  it  we  have  consulted  every  record  that  has  been  made 
that  was  accessible  and  all  the  profiles*  that  have  been  platted  in 
connection  with  the  river.  It  truly  and  correctly  depicts  the  gauge 
readings  according  to  the  accepted  method  of  depicting  them  by 
hydraulic  engineers. 

Profiles  admitted  in  evidence,  Cooley  Abst.,  p.  813. 

On  this  consolidated  profile,  Cooley  Exhibit  3,  the  bottom  shown 
as  ‘^Bottom  in  1883,”  is  the  bottom  as  determined  in  the  Benyuard 
survey,  with  such  measurements  as  were  made  in  the  Marshall 
survey  and  reported  in  the  volume  of  maps  of  Captain  W.  1j. 
Marshall  in  1890.  We  have  compared  with  that  another  survey 
made  by  the  Barlow  Board,  which  with  certain  changes  and  amend- 
ments was  reported  in  the  volume  of  maps  published  by  the  Ernst 
Board  in  1905,  and  that  represents  the  second  or  dotted  line  which 
shows  changes  in  the  bottom  in  the  pools  known  as  Lake  DuPage 
and  Lake  Joliet.  (Cooley,  Abst.,  p.  814.) 


270. 


Near  the  extreme  northeast  point  shown  here  is  Dam  No.  1 and 
so  labelled.  Near  the  extreme  left  hand  or  southwesterly  limit  is 
labelled  ‘‘E.  J.  & E.  Ey.  Bridge,’’  about  two  and  a half  miles  below 
the  confluence  of  the  Kankakee.  The  entire  reach  of  the  river  be- 
tween those  points  is  shown.  (Ev.  Cooley,  Abst.,  p.  814.)  The 
profile  follows  the  line  of  the  river  from  Dam  No.  1 down  to  the 
E.  J.  & E.  Eailway  bridge,  two  and  a half  miles  below  the  conflu- 
ence of  the  Kankakee  and  Des  Plaines,  and  shows  the  depth  of  said 
channel  clear  through  below  the  water  line  of  1883  which  has  been 
taken  as  standard  in  all  surveys.  It  is  drawn  to  a scale  of  2,000 
feet  to  one  inch  horizontal  and  ten  feet  to  one  inch  vertical.  It  is 
customary  to  exaggerate  the  vertical  scale  sufficient  to  visualize 
the  slopes  and  declivities.  (Cooley,  Ahst.,  p.  814.)  On  the  bot- 
tom of  the  label,  ‘ ‘ From  Power  Station  Miles,  ’ ’ and  then  a row  of 
figures,  3,  4,  5,  running  down  to  20,  down  below — a little  below  the 
Dresden  Island  head,  the  distances  are  given  from  the  power  sta- 
tion of  the  Sanitary  District  at  the  end  of  the  Sanitary  channel 
below  Lockport,  both  in  feet  and  in  miles  down  stream.  These 
vertical  lines  that  cross  the  profile  about  half  an  inch  apart  repre- 
sent thousand  feet  distances.  Tlien  you  have  horizontal  lines 
drawn  across  the  profile  from  left  to  right,  with  the  label  on  the 
left  end,  ‘‘Feet  below  Chicago  datum,”  and  these  vertical  lines  be- 
ginning at  the  top  are  labeled  30,  40,  50,  60,  70,  80,  90,  100  and  110. 
Those  are  elevations  below  the  level  of  Chicago  datum.  Then  a 
number  of  lines  here  labeled  respectively  2,000  second  feet,  4,000, 
6,000,  8,000,  10,000  and  13,000  feet.  (Cooley,  Ahst.,  p.  815.)  The 
volume  is  expressed  in  cubic  feet  of  water  per  second  of  time,  and 
these  several  lines  represent  the  profile  of  the  water  surfaqe  as  it 
would  he  and  is  at  the  volume  expressed  upon  the  line,  which  is 
when  that  amount  of  water  is  passing.  It  is  an  interpretation  of 
all  the  information  that  we  have  upon  the  relation  of  stages  of 
water  and  of  the  volume  passing.  The  line  above  all  of  them,  which 
is  labeled  “H.  W.,  1892,”  was  the  high  water  line  of  1892.  That  is 
the  line  that  is  entered  upon  the  profile  of  the  report  of  the  Board 
of  1905.  It  is  also  entered  upon  the  profiles  made  by  the  Sanitary 
District.  The  water  has  at  times  been  up  to  each  of  these  different 
lines,  including  the  top  one.  High  Water,  1892.  For  instance,  here 
is  a line  labeled  “13,000  second  feet” ; the  water  in  the  Des  Plaines 


Ivivor  anioiiiited  to  lo^OGO  seoond  I'eet  in  1892  and  1904.  (Cooley, 
Abst.,  p.  815.)  l>otli  liigli  waters  were  very  nearly  at  the  same 
elevation,  as  shown  by  the  1892  line,  and  corresponded  to  volumes 
oi*  25,000  to  30,000  second  feet,  I don’t  remember  the  exact  amount. 
We  have  here  crossing  the  profile  a blue  hand  which  has  the  4,000 
second  feet  just  below  it  and  the  line  6,000  second  feet  just  above 
it,  and  the  space  between  the  two  lines  is  colored  with  a solid  blue 
band.  The  blue  band  represents  the  characteristic  low  water  stage 
and  its  variations  which  have  prevailed  since  January,  1900.  That 
is  the  time  when  the  water  of  the  Sanitary  District  was  turned  into 
the  Des  Elaines  Diver.  There  is  one  line  among  others  which  we 
used  in  checking  these  flood  lines,  low  water  lines  as  shown  upon 
the  profile  of  the  last  survey  reported  in  1905.  That  line  corre- 
sponds to  4,400  second  feet  and  is  indicated  on  the  profile  as  the 
lowest  water  of  the  survey  and  is  above  the  lower  limit  of  the  blue 
band.  That  is,  the  4,400  feet  line  would  be  a little  above  the  4,000 
feet  line.  (Ev.  Cooley,  Abst.,  p.  815.)  We  did  not  draw  any  pro- 
files of  different  surveys  upon  this  map,  but  simply  put  the  regular 
lines  across  so  as  not  to  confuse  the  profile.  It  would  have  con- 
fused the  profile  to  have  attempted  to  put  them  all  in.  There  is 
such  a thing  as  getting  so  many  lines  on  that  they  would  confuse 
each  other.  Above  all  these  lines  are  various  distinguishing  labels, 
like  Dock  Dun,  Brandon  Bridge,  Cedar  Creek,  Head  of  Treat’s 
Island,  and  so  forth.  Those  represent  geographical  points  along 
the  course  of  the  river  and  opposite  the  points  on  the  profile  desig- 
nated. For  instance,  here  we  have  a vertical  line  near  the  middle 
of  the  profile  of  the  canal,  and  upon  the  vertical  line  are  the  words 
^‘Foot  of  Treat’s  Island.”  Look  at  the  bottom  of  the  map  and  the 
profile,  then  the  figure  12,  and  then  this  line ; that  is,  this  level  is  just 
1,000  feet  to  the  left  of  that  12.  That  is  the  position  upon  the 
channel  profile  of  the  foot  of  Treat’s  Island.  It  is  12  miles  plus 
1,000  feet  below  the  power  station.  It  is  geographically  correct, 
and  so  are  the  other  geographical  indications.  (Ev.  Cooley,  Abst., 

p.  816.) 

Now  taking  the  line  which  is  illustrative  near  the  center  of  the 
map,  the  profile,  the  bottom  of  the  river  as  indicated  here  occurs 
between  the  horizontal  line  marked  90  and  the  horizontal  line 
marked  80.  These  90  and  80  respectively  mean  90  and  80  feet  be- 


low  (liioa^o  (latum;  and  the  hod}’  ai)ii)areutly  ot  water,  painted 
hi  lie,  between  tlie  bottom  of  tlie  river  and  tlie  low  Avater  mark  of 
the  river,  is  just  a (piarter  of  an  in(di  liigli  ut  that  point.  A cjuarter 
of  an  ineli  on  that  scale  would  mean  two  and  a half  feet;  that  would 
mean  that  the  low  water  mark  of  188d,  at  that  point— the  water 
was  two  and  a half  feet  deep.  At  tliat  same  jioint  tlie  line  labeled 
4,000  second  feet  is  just  half  an  inch  above  the  bottom  of  the  river. 
That  would  signify  that  with  a volume  of  4,000  feet  of  water  pass- 
ing that  point  the  depth  would  be  five  feet.  (Cooley,  Abst.,  p.  816.) 

Down  here  at  a iilace  near  the  left-hand  end,  labeled  ^‘Economy 
Light  and  Power  Co.  Plant,”  and  a vertical  line  drawn  there,  that 
repi’esents  the  site  of  the  dam. 

dust  a little  to  the  west  of  the  18-mile  line,  the  4,000-feet  stage  at 
a slight  elevation  at  the  bottom  there,  is  6-16  or  f of  an  inch  away 
from  the  line  marked  ‘‘Low  water  line.”  That  indicates  a differ- 
ence in  the  elevation  of  8.75  feet — three  and  three-fourths  feet  in 
depth;  and  the  6,000-foot  line  at  that  point,  which  is  a rather  strong 
half  inch,  would  indicate  a depth  of  five  feet.  In  the  stretch  of  the 
Des  Plaines  River  shown  by  this  profile,  the  shallowest  depth  of 
water  at  the  low  water  mark  in  1883— the  point  of  least  depth  on 
this  profile  is  within  100  yards  up-stream  from  the  site  of  the  dam 
of  the  Economy  Light  and  Power  Company.  (Cooley,  Abst.,  p. 
816.)  The  indicated  depth  at  that  shallowest  point  is  not  far  from 
eighteen  inches.  It  is  shown  on  this  profile  to  be  fifteen  inches. 
(Cooley,  Abst.,  p.  817.)  I think  a fair  interpretation  of  those 
lines  as  draftsmen  draw  lines,  the  center  line  of  course,  and  no 
clearances  in  between,  make  about  an  eighth  of  an  inch.  Using 
this  scale  I have  here,  the  depth  at  the  4,000-foot  line  above  that 
little  jut  (projecting  upward  from  the  bottom),  that  is  just  at  the 
right  of  the  dam,  is  slightly  in  excess  of  three  feet ; and  at  the 
6,000-foot  line  in  excess  of  four  feet. 

Now,  toward  the  other  end  of  the  map,  the  northeast  end,  we  have 
got  Hickory  Creek  represented,  and  there  seeius  to  be  a place,  per- 
haps 1,200  feet  to  the  left,  just  below  Hickory  Creek,  where  a little 
nubbin  in  the  bottom  sticks  up,  which  T should  say  is  from  16  to  18 
inches.  (Cooley,  Abst.,  p.  817.) 

Those  represent  the  shallowest  places  in  this  reach  of  the  river 
from  Dam  No.  1 to  the  mouth  of  the  river,  proportionately  the 


leiig’tli  of  tlie  cliannel  tliroii^’li  \v'lii(*li  those  sliallovv  spots  extend; 
and  the  balance  of  the  river  in  depth,  I think  thei'e  are  depths  run- 
ning about  twenty  feet  on  that  profile,  and  down  to  these  minimums 
wliieli  have  been  stated,  whicli  are  for  very  limited  distances.  The 
shallow  spot  just  beloAV' — about  a tbousand  to  fifteen  hundred  feet 
below  the  label  Du  Page  River,  is  the  bar  formed  by  the  deposit 
from  the  Du  Page  River,  and  the  depth  there  is  about  twenty 
inches.  The  depth  there  since  the  turning  in  of  the  Sanitary  Dis- 
trict water  is  from  slightly  under  five  feet  to  something  over  six 
and  a half. 

Dam  No.  1 is  represented  here  near  the  right  edge  of  the  profile 
and  the  bed  of  the  river  is  indicated  as  coming  between  the  lines  50 
and  60,  three-quarters  of  an  inch  down  from  50  and  one-quarter  of 
an  inch  above  60.  (Ev.  Cooley,  Abst.,  p.  817.)  The  height  of  the 
river  as  indicated  at  that  point  on  the  profile — the  figure  as  stated 
would  be  571  feet  below  Chicago  datum.  And  the  bottom  of  the 
river  at  the  other  end  of  the  profile,  where  the  site  of  the  dam  is 
marked  coming  between  the  lines  90  and  100  apparently  about 
9-16  of  an  inch  below  the  line  marked  90,  the  elevation  of  the  bed 
of  the  river  at  that  point  is  about  95.6  feet  below  Chicago  datum. 
The  difference  between  571,  the  bed  of  the  river  and  Dam  No.  1, 
and  95.6,  the  bed  of  the  river  at  the  proposed  dam,  would  give  the 
falj  in  the  bed  of  the  river  between  those  two  points;  that  would  be 
38.1,  I think;  that  would  be  the  fall  in  the  bed  of  the  stream  between 
the  points  named.  Dam  No.  1 is  shown  a little  to  the  right,  or 
northeast,  of  the  three-mile  point,  about  1,500  feet  up  stream..  (Ev. 
Cooley,  Abst.,  p.  818.)  The  proposed  new  dam  is  marked  as  a 
little  to  the  left  or  west  of  the  eighteen -mile  point.  Those  two 
points  are  15.6  miles  apart.  Then  there  would  be  a fall  of  38.1 
in  15.6  miles,  or  in  round  numbers  21  feet  to  the  mile  as  an  average. 
(Ev.  Cooley,  Abst.,  p.  818.)  These  lines  here  across,  with  the  sec- 
ond feet  level  and  low  water  and  high  water  levels  indicate  totals  of 
waters  in  the  river  itself. 

1 am  acquainted  with  the  dimensions  of  the  Sanitary  District 
Channel.  The  channel  in  the  Rock  Cut  for  something  less  than 
seventeen  miles  between  Willow  Springs  and  the  terminus  at  Lock- 
port,  has  a bottom  width  of  160  feet  and  width  at  water  line  of  162 
feet,  and  depth  when  running  to  its  full  capacity  of  24  feet  at  stand- 


li/4 


ard  low  water  of  Tjake  Mielii^aii,  when  filled.  By  full  capacity,  I 
mean  14,000  cnhic  feet  of  water  per  second,  for  wliicli  tlie  Sanitary 
Canal  is  designed.  It  never  lias  run  that  much,  unless  possibly  in 
an  endeavor  to  get  rid  of  some  flood  water  out  of  Chicago.  (Ev. 
Cooley,  Abst.,  p.  818.) 


CON SOLTDATE I ) PKOFI LE . 

The  consolidated  profile  is  a summary  of  the  official  data  re- 
specting navigaliility.  Tn  its  preparation  the  following  among 
other  documents  have  been  drawn  upon : 

The  report  of  1890,  Captain  W.  L.  Marshall,  U.  S.  A.,  is  based 
upon  the  data  of  the  survey  of  1883,  under  Major  AV.  H.  H.  Ben- 
yaurd,  U.  S.  A.  The  report  of  the  Ernst  Board  of  1905  is  based  in- 
part upon  the  survey  under  the  Barlow  Board,  1899-1900.  The 
hydrographic  data  are  interpreted  by  the  gauge  equivalents  of  Mr. 
James  A.  Seddon,  1901-2.  The  records  of  the  Sanitary  District  of 
1905,  gauge  records  and  other  hydrographic  data,  in  official  re- 
ports of  the  United  States  and  of  the  Sanitary  District,  have  been 
checked  against,  and  also  the  continuous  records  of  flow  through 
the  Drainage  Canal,  the  Illinois  and  Michigan  Canal  and  the  Upper 
Des  Plaines  Elver,  since  January,  1900. 

The  low  water  of  1883  is  the  equivalent  of  800  second  feet,  and 
represents  about  the  normal  average  flow  of  the  Des  Plaines  Eiver 
prior  to  the  opening  of  the  Illinois  and  Michigan  Canal  in  1848. 

In  1848-71  the  flow  in  dry  seasons  was  increased  from  the  summit 
level  of  the  Illinois  and  Michigan  Canal  (8  feet  above  Chicago 
datum)  by  the  Calumet  feeder,  from  the  Calumet  Eiver  at  Blue 
Island,  and  by  lift-wheels,  from  the  Chicago  Eiver  at  Bridgeport. 

In  1871-84  the  deep  cut  drew  directly  by  gravity  from  the  Chicago 
Eiver,  and  the  normal  low  water  flow  was  taken  at  600  second  feet 
in  water  })ower  leases  at  Lockport.  The  canal  water,  together  with 
the  natural  volume,  makes  up  the  extreme  low  water  of  1883,  which 
has  since  been  taken  as  a standard. 

In  1884-1900  the  flow  was  increased  by  the  pumping  plant  at 
Bridgeport,  installed  in  response  to  the  Joint  Eesolution  of  1881 
l)y  the  General  Assembly. 


The  Drainage  Canal  was  opened  January  17th,  1900,  and  the  flow 
tliroug'li  the  same  is  limited  to  4,200  second  feet,  by  Federal  autiior- 
ity,  in  the  interest  of  navigation  in  the  Chicago  Kiver,  hut  is  in- 
creased to  5,000-6,000  second  feet  in  the  closed  season.  The  flow  of 
the  Drainage  Canal,  together  with  that  of  the  Illinois  and  Michigan 
Canal  and  the  ordinary  flow  of  the  Upper  Des  Plaines  Elver,  pro- 
duce the  stage  of  water  shown  by  the  blue  band  upon  the  profile, 
corresponding  to  volumes  varying  between  4,000  and  6,000  second- 
feet,  and  normally  about  5,000  second-feet. 

The  gauge  equivalent  show  the  stage  of  water  produced  by  acces- 
sions of  flow  through  the  Drainage  Canal.  The  capacity  when 
completed  is  taken  at  14,000  second-feet  at  low  water  of  Lake  Mich- 
igan, and  the  present  legal  requirement  is  7,500  second-feet  for  an 
estimated  population  of  2,250,000. 

The  later  surveys  show  no  material  change  in  the  river  bed  at 
rapids.  All  surveys  show  diminishing  pool  depths,  especially  in 
Lake  Joliet. 

The  prevailing  stage  of  water  in  the  absence  of  floods  is  repre- 
sented by  the  blue  band,  between  volumes  4,000  and  6,000  second- 
feet.  The  actual  volume  since  the  opening  of  the  Dminage  Canal 
in  January,  1900,  has  corresponded  generally  wdth  the  stage  for 
5,000  second-feet.  The  stage  for  greater  volumes  is  shown  on  the 
profile. 

The  minimum  depth  in  the  channel  for  three  stages  of  water  is 
shown  for  three  characteristics  ruling  points  of  least  depth,  as  fol- 
lows : 


Station  on 


5,000  2nd-  10,000  2nd-  15,000  2nd 


Profile 


59 

64 

96.3 


By  a nominal  amount  of  work-in  clearing  the  river  bed  and  re- 
moving some  points  or  reefs  at  the  ruling  places  of  the  TreaCs 
Island  and  Kankakee  Eax)ids  (see  testimony  of  (dement,  Abst.,  p. 
393),  4.5  feet  may  be  made  the  prevailing  depth  for  a volume  of 
5,000  second-feet,  which  corresponds  to  the  characteristic  stage  of 
water  since  January,  1900. 


AVlien  sueli  correction  of  tlie  river  l)ed  is  made,  tlie  depth  of  6 
feet  and  upwards  can  l)e  carried  over  both  rapids  with  a volume  of 
10,000  second-feet.  Such  volume  is  to  he  looked  for  in  the  next 
stage  of  development  of  the  Main  Channel  of  the  Sanitary  District. 

With  such  correction  a volume  of  15,000  second-feet  will  give  a 
depth  of  7 feet  and  upwards  at  the  rapids,  arid  this  is  the  depth  for 
which  the  Hennepin  Canal  has  been  built.  The  rated  capacity  of 
the  Main  Channel  of  the  Sanitary  District  is  14,000  second-feet, 
and  this,  together  with  the  capacity  of  the  Illinois  and  Michigan 
Canal  and  the  natural  flow  of  the  stream,  will  produce  the  charac- 
teristic volume  of  15,000  second-feet,  through  the  Des  Plaines 
Eiver  herein  considered. 

The  velocities  will  not  exceed  four  to  five  miles  per  hour,  which 
is  within  the  limit  of  up-stream  navigation  upon  many  of  our  rivers. 

THE  COOLEY  CONSOLIDATED  PEOFILE. 

(Cooley  Exhibit  3.) 

ADVERSE  CRITICISM  THEREON  ABANDONED. 

Mr.  Woermann  (assistant  engineer  for  defense;  Abst.,  p.  1442.) 

have  observed  some  difference  between  the  profile  repre- 
sented as  that  of  1883  on  Cooley  Exhibit  3 and  the  original 
Government  map  showing  that  profile.’’  (Ahst.,  p.  1442.) 

^^The  greatest  differences  1 have  observed  is  in  connection 
with  the  depth  of  water  shown  in  the  vicinity  of  Treat’s  Island. 
The  profile  submitted  by  Mr.  Cooley  shows  a depth  of  water  at 
the  foot  of  Treat’s  Island  of  2 feet,  whereas  the  original  shows 
a foot  and  seven-tenths.  At  the  head  of  Treat’s  Island  Mr. 
Cooley’s  profile  shows  2 feet  and  eight-tenths  and  the  original 
and  also  the  published  copy  shows  one  foot.”  (Abst.,  p.  1443.) 

AVhile  the  complainant  was  putting  in  its  rebuttal,  the  following 
occurred : 

Counsel  for  Complainant : A¥ith  reference  to  the  Cooley  profiles, 
when  we  offered  those  in  evidence,  the  defendants  insisted  upon 
the  documents  from  which  they  were  compiled  being  put  in  evi- 
dence. AVe  spent  a few  days  assembling  them,  putting  them  to- 
gether, and  then  it  was  suggested  fhat  the  other  side  would  concede 
the  correctness  of  Mr.  Cooley’s  profile  so  as  to  make  it  unnecessary 
to  put  them  in  evidence.  That  they  have  not  done ; they  have  only 


loiiiid  two  eriiicisins,  and  1 am  about  to  take  them  up  and  make 
clear  whatever  there  is  in  that;  but  we  sulmiit,  your  Honor,  as  they 
insist  upon  these  documents  being  assembled  and  put  in  evidence — 
that  is,  they  have  not  admitted  the  correctness  of  the  profiles — it  is 
proper  now  that  they  should  go  in  evidence,  if  they  have  not  already 
— that  is,  Cooley  Exhibit  21  to  about  40,  I think.  (Abst.,  p.  1667.) 

Counsel  for  Defendant : We  objected  to  them.  Mr.  Cooley  testi- 
fied that  this  profile  was  correct.  Then,  subsequently,  they  offered 
all  of  the  data  from  which  the  profile  was  made,  and  your  Honor 
said  we  would  save  time  if  we  looked  it  over. 

The  Court : I remember.  You  were  to  say  whether  the  profile 
corresponded  with  the  data  evidence,  but  there  was  no  need  for  the 
data. 

Counsel  for  Defendant : Mr.  Woerman  calls  my  attention  to  the 
fact  that  he  wishes  to  correct  his  testimony,  and  it  may  obviate 
some  difficulty  if  he  does.  Mr.  Woerman  pointed  one  discrepancy 
in  the  Cooley  profile,  and  he  wants  to  explain  that.  He  calls  my 
attention  to  the  fact  that  he  thinks  he  was  in  error  and  desires  an 
opportunity  to  correct  it. 

The  Court:  Very  well. 

Counsel  for  Defendant:  Will  you  take  the  stand  and  make  any 
statement  you  wish  on  the  matter!  (Abst.,  p.  1668.) 

J.  W.  Woerman, 

recalled  in  behalf  of  defendant,  further  testified  as  follows : 

^ ‘ I was  familiar  with  the  fact  that  Mr.  Wheeler,  in  his  1889  sur- 
vey, located  his  lock  and  dam  in  the  left-hand  channel,  and  this  pro- 
file, which  we  introduced,  from  his  published  report,  showing  a foot 
of  water  at  the  head  of  Treat’s  Island — I put  those  things  together 
and  drew  the  conclusion  that  the  profile  was  on  the  left-hand  chan- 
nel, and  on  that  basis  I criticised  Mr.  Cooley’s  depth  in  the  left- 
hand  channel ; I find,  by  going  further  back  to  the  1883  profile,  that 
that  was  down  the  right-hand  channel,  not  the  left-hand.  So  I don’t 
criticise  his  depth.  I knew  the  lock  and  dam  were  located  in  the 
left-hand  channel,  and  there  is  a discrepancy  in  respect  to  that  in 
Mr.  Wheeler’s  profile,  which  misled  me.  (Abst.,  1668.) 


‘J78 

L.  E.  (Uxdey  (for  the  State):  Aly  attention  is  directed  to  the 
statement  by  Mr.  Woernian  that  the  i)rofiIe  of  188.‘]  went  down  one 
of  the  channels  next  to  Treat’s  Island;  and  further  to  Cooley  Ex- 
hibit 25,  and  Cooley  Exhibit  2b,  l)eing,  respectively,  sheets  15  and 
15,  from  the  Marshall  report,  and  certified,  both  of  them,  ])y  W.  L. 
Marshall,  Captain  of  Engineers,  February  28,  1890.  These  sheets 
represent  the  river  and  the  findings  as  surveyed  in  1885.  That  sur- 
vey was  made  under  Major  Benyaurd,  by  (x.  Y.  AVisner.  A report 
was  i)ublished  in  1885,  but  no  maps  and  profiles  were  published  at 
that  time.  They  were  first  published  in  the  Marshall  collection  in 
1890.  These  two  sheets  l)oth  come  from  that  collection.  (Abst., 
]).  Ibb9.) 

Upon  Cooley  Exhibit  2b,  sheet  15,  which  gives  the  island  on  the 
smaller  scale,  there  is  a dotted  line  which  extends  from  one  side  of 
the  map  to  the  other  along  the  green  strip  representing  the  Des 
Plaines  Eiver,  and  when  we  come  to  Treat’s  Island  on  this  sheet 
the  dotted  line  passes  on  the  north  or  right-hand  side  of  the  island. 
(Abst.,  pp.  lbb9-70.) 

Q.  Now,  I call  your  attention  to  the  hgrire  2.8  in  the  first  line 
of  soundings  on  the  left-hand  channel,  going  down,  touching  the 
island ; the  head  of  the  island ; the  first  one  that  does  not  go  clear 
across ; what  does  that  2.8  mean! 

A.  2.8  feet  below  the  Tviater  plane  of  1885.  That  is,  at  the  time 
this  was  taken  it  was  not  as  deep  as  the  low  water  plane  of  1885. 
This  is  the  plat  of  1885;  the  2.8  is  the  actual  depth  of  the  water  at 
that  time. 

Q.  Then  I direct  your  attention  to  the  other  sheet,  Cooley  Ex- 
hibit 25,  sheet  IS,  and  call  your  attention  to  the  dotted  line  running 
down  the  left-hand  channel  along  Treat’s  Island;  what  is  that? 
(Abst.,  p.  Ib70.) 

A.  Plan  of  the  profile.  On  these  two  sheets  respectively,  for 
the  profile  of  1885,  one  of  them  carries  the  line  of  profile  down  the 
right-hand  channel,  and  one  carries  the  line  of  profile  down  the 
left-hand  channel.  The  figures  1.7  in  the  right-hand  channel,  at  the 
foot  and  near  the  center  of  the  channel,  are  1.7  feet  depth  of  water ; 
and  very  nearly  the  exact  center  of  the  stream,  just  at  the  head  of 
the  island,  but  very  nearly  touching  the  island,  in  the  right-hand 


2711 

eliaiiiiel,  on  sluH'i  12,  I.O  is  oiio  foot  in  (lei)lli  al  the  liiiu*  of  IIk^  sin-- 
vey.  On  the  same  sheet,  12,  just  helovv  tiie  tenninns  oi-  lowcn-  point 
ot‘  the  island,  and  in  the  lel't-liand  eliannel  (‘ontinned,  the  figures  2.0 
means  two  feet  in  depth,  lower  ])lane.  OMien  out  of  the  maps,  the 
2.8  at  the  head  and  the  2.0'  at  the  foot  will  he  found  on  the  left-liand 
ehannel  going  down;  and  the  1.0  at  the  liead  and  the  1.7  at  the  foot 
will  be  found  on  the  right  hand  going  down.  (Ahst.,  ])]).  1070-1.) 

Depths  or  the  Des  Ph^ines. 

(Cooley  Exhibits  25,  26,  27.) 

Cooley  Exhibits  25,  26  and  27  are,  respectively,  sheets  13,  15  and 
16  from  the  large  Government  document  of  the  Eeport  of  the 
United  States  Engineers  for  1890,  viz.:  Executive  Document  261, 
Part  II,  which  is  a large  book  of  maps.  These  maps,  Cooley  Ex- 
hibit 25,  Cooley  Exhibit  26  and  Cooley  Exhibit  27,  exhibit  the  Des 
Plaines  Eiver  with  the  soundings  of  1883  platted  thereon  from 
Joliet  to  the  mouth  of  the  river.  The  soundings  are  arranged  very 
much  as  those  upon  the  Macomb  Profile  of  1871,  but  are  fuller  and 
more  complete.  From  Joliet  to  the  mouth  there  is  no  place  where 
a band  of  soundings  extending  across  the  stream  exhibits  a channel 
which  is  not  more  than  one  foot  deep. 

We  give  herewith  a copy  of  all  the  soundings  of  these  1883-90 
profiles,  and  trace  the  line  of  navigation  thereon,  showing  that  a 
boat  starting  at  Dam  No.  1 Joliet  and  going  down  stream,  taking 
the  southeast  and  left-hand  channel  at  Treat’s  Island,  would  have 
more  than  two  feet  of  water  all  the  way,  except  at  two  places,  oiu^ 
of  which  is  at  the  sixth  sounding  below  the  C.  E.  I.  & P.  bridge, 
where  it  would  find  1.9  feet  (22.8  inches),  and  the  other  from  below 
Station  110  to  Station  111,  just  below  the  Kankakee  feeder — the 
depth  below  110  being  1.9  (22.8  inches)  and  at  111  being  1.5  feet 
(18  inches),  while  throughout  the  journey,  except  iii  a few  places, 
the  depth  would  be  more  than  three  feet. 

This  confirms,  beyond  dispute,  the  testimony  of  Clement,  who 
had  personally  often  traversed  the  entire  distance  in  his  boat. 

‘‘About  1885  1 made  a trij)  from  here  (Joliet)  to  a mile 
below  the  junction  of  the  Kankakee  and  Des  Plaines  Divers 
and  returned  on  the  canal  the  same  day,  making  a tri})  of 
829  about  32  miles  from  eight  o’clo(‘k  in  the  morning  until  ten 


:lHi) 


at  night.  That  was  ])r()l)a1)ly  oitlier  in  June  or  Septem- 
ber; thei-e  was  no  trouble  on  the  water  tliat  trip.  I made  two 
carries,  one  from  the  canal  into  the  river,  one  from  the  Illinois 
l\iver  into  the  canal.  We  did  not  have  to  })ole  at  all 
8d()  that  tri]).  The  ])oat  loaded  as  it  was  drew  between  twelve 
and  fifteen  inches.  We  put  in  opposite  the  oatmeal  mill, 
about  three-quarters  of  a mile  below  Jefferson  street. 

‘‘At  that  time  a boat  drawing  two  feet  of  water  would  find 
the  river  navigable  in  the  condition  it  then  was.”  (Depn.  of 
A.  C.  Clement,  Abst.,  p.  393.) 

These  soundings,  it  will  be  observed  once  more,  were  taken  in 
1883,  6 years  before  the  Drainage  Act  was  passed  and  17  years  be- 
fore the  Drainage  water  was  turned  in — but  after  the  deep  cut 
water  had  been  running  in  the  river  for  15  years.  The  copy  of  the 
soundings  is  as  follows: 


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It  will  bo  obsorvod  that  the  label  on  the  profiles  is  as  follows: 

“Traein^'  of  Map  of  Dos  Plaines  and  Illinois  Rivers  from 
fJoliet  to  LaSalle.  Survey  of  1883.  Showing  Location  of 
Lakes  and  Danis  for  I^roposed  AVaterway  between  Lake  Micli- 
igan  and  M ississippi  River. 

“Seale  for  Map — 1 inch  eijuals  (iOO  feet. 

“Scale  for  Profile — Horizontal,  1 inch  ecjuals  750  feet;  verti- 
cal, 1 inch  equals  80  feet. 

“To  accompany  my  report  of  this  date  upon  the  proposed 
waterwav  between  Lake  Michigan  and  Mississippi  River. 

^^W.L.  Marshall, 
“Captain  of  Engineers. 

“Chicago,  111.,  February  28,  1890.” 

This  makes  it  clear  that  the  soundings  are  the  soundings  of  1883, 
that  the  publication  is  the  publication  of  1890,  that  the  Tvork  was 
the  work  of  Major  Benyaurd  and  the  publishing  is  the  work  of 
Captain  Marshall. 

It  will  be  observed  that  Cooley  Exhibit  25  is  the  map  of  the  re- 
survey, which  takes  the  section  giving  Treat’s  Island  and  exhibits 
it  with  greater  fullness  and  with  a map  drawn  to  a larger  scale,  and 
that  it  represents  the  channel  as  going  down  the  soutlieast  or  left- 
hand  side  at  Treat’s  Island,  while  the  larger  map  carries  the  dotted 
line  down  the  right  or  northwest  side;  so  that  both  channels  were 
platted.  Some  little  confusion  inadvertently  arose  here  also.  Air. 
Woerman  insisting  that  the  navigation  channel  must  he  ti'eated  as 
going  down  the  right  or  northwest  channel,  while  Air.  Cooley  in- 
sisted it  should  go  down  the  southeast  or  left-band  channel.  Air. 
Cooley  was  plainly  right  here,  because  the  northwest  or  right-hand 
channel  at  Treat’s  Island  is  further  interfered  with  by  another, 
small  island,  which  reduces  the  width  of  the  stream  to  less  than 
100  feet  in  the  narrowest  point.  No  such  interference  with  the 
width  appears  on  the  right-hand  or  southeast  channel. 

Again,  just  where  this  little  island  aiqiears  to  the  north  of 
Treat’s  Island,  in  this  narrowest  point  there  is  also  the  shallowest 
point  where  the  very  shallowest  lines  of  soundings  occur,  viz.; 
“1.9,”  “1.5,”  “0.8,”  near  the  head  of  the  island,  and  “0.7,”  “0.8,” 
“1.2”  near  the  foot  of  the  island.  These  are  tlie  minimum  depths 
on  the  channel  which  the  defense  insisted  should  be  treated  as  the 
channel  by  which  navigation  must  be  tested. 

On  the  other  hand,  on  the  southeast  or  left-hand  side,  the  line  of 


284 


soiindiiio-s  sliowing  the  ininininm  deptli  is  as  follows: 

^‘2.0/’ ‘^1.2,’’ ^‘2.3,’’ ^M.5”  and 

]t  is  perfectly  obvious  that  the  southeast  channel  has  the  greater 
mwimmn  depth.  A boat  going  down  over  this  course  would  have 
less  water  beneath  its  keel  if  it  took  the  north w^est  side  than  if  it 
took  the  southeast  side.  Naturally  Mr.  Cooley,  who  testified  that  a 
boat  could  make  the  trip,  said  it  should  take  the  southeast  channel, 
where  the  water  was  2.3  feet  deep  in  the  middle  at  the  shallowest 
place;  while  equally  naturally  Mr.  Woerman,  for  the  defense,  who 
stated  that  a boat  could  not  do  it,  selected  the  narrowest  and  most 
embarrassed  channel  as  the  one  for  the  trip,  and  where  at  the  shal- 
lowest points  the  boat  would  encounter  1.5  feet  of  water  on  one  line 
of  soundings  and  1.2  feet  on  another. 

And  this  is  the  place  where  occur  the  narrownesses  the  sinuosi- 
ties, the  tortuosities,  and  the  pile  of  boulders,  testified  to  by  Mr. 
Woerman  and  his  colleagues  whom  he  educated  for  the  defense. 

And  this  is  the  place  where  Mr.  Woerman  stated  he  had  to  get 
out  and  drag  his  boat  when  he  went  over  it  in  1889. 

We  submit,  not  only  that  the  evidence  for  the  defense  does  not 
outweigh  that  of  the  complainant  upon  this,  but  further  we  say  that 
the  testimony  by  Woerman  and  colleagues  that  a boat  could  not  go 
down  the  right-hand  channel,  does  not  even  contradict  the  evidence 
of  Cooley  that  a boat  could  go  down  the  left-hand  channel. 

And  we  further  submit  that  in  deciding  whether  or  not  this  river 
is  navigable  the  State  is  entitled  to  the  benefit  of  the  best  depths 
where  the  choice  occurs  between  channels. 

Depths. — The  Wilson  Profile  of  1867. 

This  document  was  put  in  evidence  as  ‘^Cooley  Exhibit  35” 
(Abst.,  p.  1667),  and  was  one  of  the  documents  made  use  of  by  En-’ 
gineer  Cooley  in  the  preparation  of  the  consolidated  profile  of  the 
river,  but  it  was  not  delineated  upon  that  consolidated  profile. 

It  is  referred  to  in  the  report  of  the  U.  S.  Chief  of  Engineers  for 
1868,  under  date  of  December  17,  1867,  p.  439. 

The  engineer  in  immediate  charge  of  the  Des  Plaines  survey  was 
James  lYorrall,  who  states  (p.  459)  that  they  began  at  Bridgeport, 


Chicago,  June  1!),  and  ended  at  Crand  Island  in  the  Illinois  Novem- 
ber 39.  ddie  work  on  the  lower  Des  Plaines  was  therefore  done  in 
November,  nsnally  tlie  month  of  lowest  water. 

Ceneral  Wilson  says: 

“ By  a careful  examination  of  the  report  and  profiles  of  this 
year’s  survey,  with  the  map  herewith  submitted,  it  will  be  seen 
that  the  location  of  the  present  canal  from  Bridgeport  to  the 
valley  of  the  Des  Plaines  cannot  be  advantageously  or  econom- 
ically changed;  that  it  is  the  best,  cheapest  and  most  direct 
route  which  can  be  found,  there  having  been  more  than  enough 
work  already  done  in  this  line  to  counterbalance  the  natural 
but  not  superior  advantages  of  the  slightly  lower  but  more  tor- 
tuous route  by  the  way  of  Mud  Lake ; that  the  Calumet  Elver 
and  Saganaska  Creek  route,  along  what  is  known  as  the  Calu- 
met feeder,  would  cost  a great  deal  more  than  where  there  is 
neither  a natural  nor  artificial  harbor,  and  where  it  would  be 
impossible  to  construct  one  which  would  answer  the  purposes 
of  commerce  and  the  national  defense;  and,  finally,  that  it  is 
not  practicable  at  any  cost  to  use  any  part  of  the  Kankakee 
Elver  as  a jmrt  of  the  system  of  navigation  in  question.  For 
the  foregoing  reason,  after  a careful  consideration  of  all  the 
facts  upon  which  they  rest — a full  analysis  of  which  will  be 
given  hereafter — ^we  are  decidedly  of  the  opinion  that  in  con- 
structing such  a system  of  navigation  as  the  interests  of  the 
country  require,  the  government  must  follow  the  general  line 
of  the  Illinois  and  Michigan  Canal  and  the  Illinois  Elver.  When 
it  is  considered  that  the  summit  of  the  Fox  and  Wisconsin 
Elver  line  is  315  feet,  and  that  of  the  Lake  Winnebago  and 
Eock  Eiver  is  285  feet  a])ove  the  level  of  Lake  Michigan,  it 
will  be  seen  that  the  line  recommended  by  us  is  the  only  feasi- 
ble route  for  deep-water  communication  between  the  Great 
Lakes  and  the  Mississippi  Eiver,  equally  adapted  to  military, 
naval  and  commercial  purposes.” 

The  profile  itself  is  labeled  by  the  engineers  who  made  it  thus: 

“Profile  of  the  Illinois  River  and  Illinois  and  Michigan 
Canal,  made  under  the  direction  of  Bvt.  Maj.  Gen.  J.  H.  Wil- 
son, Lt.  Col.  U.  S.  A.,  3867.  Horizontal  scale  of  5,000  feet  to 
the  inch.  Vertical  scale  of  35  feet  to  the  inch.  Labeled  by 
H.  G.  Palfrey  and  IT.  F.  Worrall,  Civil  Engineers,  Assts. 
Brawn  by  G.  A.  Keefer.” 

The  profile  professes  to  relate  to  the  Illinois  Eiver  and  the  Illi- 
nois and  Michigan  Canal,  and  not  co  the  Bes  Plaines  Eiver  (except 
as  the  Bes  Plaines  Eiver  may  properly  be  considered,  as  it  usually 
is  in  government  reports,  as  a part  of  the  Illinois.)  Below  the 


of  the  lUinois  and  Midiigan  Cana]  tliere  is  sketclied  in  a 
])r()file  of  a short  i)ortion  of  the  Des  Plaines  lliver  from  Joliet  to 
the  mouth  of  the  river.  This  profile  exhibits  twelve  points  at 
which  soundings  were  taken. 

The  water  plane  is  an  assumed  plane  connecting  these  12  points. 
This  was  wliat  was  meant  by  Mr.  Cooley  when  he  testified  as  fol- 
lows: '‘The  profiles  and  soundings  of  tlie  1867  profile  are  not 
made  with  the  detail  which  is  necessary  in  order  to  plat  a profile 
of  this  character.  The  datums  were  different.  ’ ’ 

As  to  the  difference  in  datums  between  Chicago  datum,  Memphis 
datum  and  Hennepin  datum,  while  figures  upon  one  can  readily  be 
translated  into  figures  upon  another,  yet  in  the  platting  of  the  true 
planes  of  the  river  in  a consolidation  of  several  profiles,  all  based 
upon  one  and  the  same  datum,  the  introduction  of  another  based 
upon  a different  datum,  with  only  12  cross  lines  of  soundings  in  16 
miles,  is  a matter  upon  which  sound  engineering  may  well  decide 
against  it.  Mr.  Woerman  said  it  would  give  him  no  trouble.  Mr. 
Cooley  consulted  it,  but  did  not  plat  it  in  the  consolidated  profile, 
but  did  plat  it  in  the  Chicago  to  the  Mississippi  profile. 

The  fact  of  the  difference  between  the  datums  is  thus  reported 
by  Engineer  Wheeler,  assisting  Capt.  Marshall : 

‘‘Upon  reaching  Chicago  with  the  levels,  and  connecting  wuth 
the  city  bench  marks,  Chicago  datum  was  found  to  be  151.5  feet 
above  Hennepin  datum.  This  value  differs  .8  of  a foot  (9.6 
inches)  from  previous  ones  and  the  entire  distance  was  relev- 
eled in  hopes  of  finding  the  cause  of  this  discrepancy,  but  no 
appreciable  error  was  found,  and  the  previous  value  of  the 
relation  of  the  two  datums  was  152.3  feet.” 

The  fact  that  Hennepin  datum  was  found  9.6  inches  loiver  in  1889 
by  the  force  of  Capt.  Marshall  than  it  was  in  1867  by  the  force  of 
Gen.  ’Wilson,  might  well  affect  the  platting  in  1908  of  a consolidated 
profile  embracing  both. 

Applying  the  vertical  scale  of  15  feet  to  the  inch,  there  are  two 
points  where  the  depth  indicated  by  a conventional  navy  line  sep- 
arated from  the  bottom  by  a space  rneasuring  from  one-twelfth  to 
one-thirtieth  of  an  inch. 

On  the  subject  of  profiles,  Mr.  Woerman  said : 

"In  the  making  of  a profile,  the  water  line  is  drawn  to  con- 
nect measurements  taken  at  different  points  and  in  the  space 


287 


boiweoii  tlie  two  ])oints  wliioli  ai’e  so  ('onrun'tod  and  bcitwoon 
wliicli  tliero  were  no  measurements  the  line  is  an  inferred  line, 
and  the  same  is  true  of  the  bottom  line  drawn  in  the  profile  be- 
tween points  of  measurement.  Other  things  being  ecjual,  the 
aecuraey  of  a profile,  whether  of  a water  line  or  bottom  line, 
increases  as  the  number  of  the  measurements  which  can  be  so 
assembled  and  aligned  increase.”  (Abst.,  ]).  1491.) 

As  this  Keefer-Wilson  profile  is  drawn  on  a vertical  scale  of  1.5 
feet  to  the  inch,  the  water  at  these  two  points  would  be  apparently 
indicated  as  from  1 foot  3 inches  down  to  6 inches  deep  (five-tenths 
of  a foot),  at  the  time  the  profile  was  taken.  There  are  no  sound- 
ings marked  to  show  any  reason  for  choosing  the  crest  as  distin- 
guished from  the  foot  of  the  conventional  waves.  They  represent 
rapids,  not  depths ; and  otherwise  the  profile  does  not  greatly  differ 
from  the  Macomb  profile  of  ’74  at  these  points.  One  of  these  is 

near  the  35-mile  point,  the  second  is  near  the  41-mile  point  and  the 

% 

third  is  between  the  Kankakee  feeder  and  the  mouth  of  the  river. 
(Mr.  Woerman,  for  defense,  testified  that  this  should  be  taken  on 
the  ’67  profile  as  five-tenths  of  a foot.) 

The  place  indicated  on  the  Cooley  profile  corresponding  to  the 
easternmost  of  these  near  the  35miile  point  is  labeled  ^Alata  con- 
flicting.” Mr.  Cooley  testified  as  to  this: 

^^Now  toward  the  other  end  of  the  map,  the  northeast  end, 
we  have  got  Hickory  creek  represented  and  there  seems  to  be 
a place  perhaps  1,200  feet  to  the  left  of  below  Hickory  creek 
where  a little  nubbin  in  the  bottom  sticks  up,  which  T should 
say  is  from  16  to  18  inches.” 

The  other  point  near  the  mouth  of  the  river,  which  the  profile  of 
’67  gives  as  6 inches  (five-tenths  of  a foot)  is  indicated  on  the  Coo- 
ley profile  as  having  at  the  loiv  ivater  of  1883  a depth  of  15  inches. 
(Mr.  Woerman  said  this  should  be  taken  on  the  ’67  profile  as  four- 
tenths  of  a foot.)  Each  of  these  points  is  a mere  point — on  the 
horizontal  scale  of  the  ’67  profile  these  points  occupy  perhaps  one- 
sixteenth  or  one- twentieth  of  an  inch,  representing,  say,  from  175 
to  300  feet  in  length  in  the  river. 

The  Keefer  (Wilson)  profile  is  made  from  the  level  of  Hennepin 
datum.  All  the  other  profiles  are  made  on  Chicago  datum.  Engi- 
neer Worrall  on  page  464  of  the  same  report  that  the  depths  on 
the  Illinois  are: 

‘‘reduced  almost  every  season  upon  the  shoals  in  the  bed  of 


288 


the  stream  until  they  do  not  exceed  an  average  depth  of  20 
inches,  thus,  in  fact,  suspending  navigation  for  periods  of  from 
60  to  90  days,  and  extending  sometimes,  as  in  the  season  last 
past,  to  the  period  of  150  days/^ 

(This  refers  to  the  lower  Illinois.)  And  on  page  455  General 
Wilson  refers  to  the  present  season  as  ‘‘the  present  excessively  dry 
season/^ 

Engineer  Cooley  testified  that  the  year  1867  was  the  year  of  the 
lowest  water  ever  known  on  the  Des  Plaines.  There  was  no  real 
contradiction  as  to  this. 

The  two  points  in  question  are  the  only  two  points  on  the  Keefer 
(Wilson)  profile  where  the  depth  is  indicated  as  less  than  15  inches, 
and  those  are  so  indicated  only  by  the  wavy  line.  These  two  points 
are  all  below  the  dam,  and  below  the  point  where  substantially  the 
entire  water  of  the  river  is  turned  by  the  guard  lock  and  side  gate 
into  the  canal.  And  it  was  needed  there  during  this  excessively 
dry  season.  The  effect  of  so  turning  the  water  out  of  the  river  and 
into  the  canal  was  to  leave  the  bed  of  the  river  from  that  point  down 
with  the  minimum  depth  ever  known.  It  was  not  the  Des  Plaines 
Eiver  but  the  trickle  that  was  left  after  turning  the  river  into  the 
canal.  These  two  points  are  the  points  described  by  Mr.  Cooley  as 
points  of  nubbins  sticking  up  in  the  bottom,  and  these  depths  were 
taken  in  the  season  of  the  lowest  water  ever  known,  in  the  exces- 
sively dry  season  when  navigation  on  the  Illinois  itself  was  sus- 
pended for  150  days. 

It  was  urged  on  behalf  of  the  defense  that  all  other  averages  as 
to  depths  of  the  river  should  be  rejected  and  that  this  alone  should 
be  taken  and  should  be  judged  from  these  points  of  least  depth 
after  the  river  had  been  emptied  into  the  canal;  and  that  these 
points  should  be  judged  by  interpreting  the  conventional  wavy  line 
from  the  supposed  tops  of  the  indicated  wavy  line  of  the  bottom,  so 
as  to  give  the  river  the  least  possible  depth. 

The  five  months  (150  days)  that  navigation  was  suspended  on 
the  Illinois  in  1867  are  referred  to  by  Engineer  Wilson  himself  on 
page  452  thus : 

‘‘The  past  season  the  navigation  betwreen  LaSalle  and  Peo- 
ria was  almost  suspended  from  the  last  of  June  to  the  close  of 
navigation,  and  below  this  it  was  but  little  better.  In  fact. 


289 


navigation  was  virtually  suspendod  on  the  river  for  all  prae- 
tieal  purposes  for  about  five  months.’’ 

That  is,  five  months  in  addition  to  the  winter  season  when  navi- 
gation was  suspended  by  nature,  leaving  only  the  months  of  April, 
May  and  June,  and,  in  the  lower  part  of  the  Illinois,  a part  of 
jMareli,  in  which  the  Illinois  itself  was  navigable. 

Three  months  and  a half  of  actual  navigability  was  sufficient. 

Navigability  is  not  determined  by  the  depths  in  the  periods  when 
navigation  is  suspended,  but  by  the  depths  in  the  period  when  navi- 
gation prevails. 

Me.  Woermann’s  Treatment  of  the  Profile  of  1867. 

1867. 

Mr.  Woermann  prepared  ‘‘ Woermann’s  Exhibit  D”  on  a sheet  of 
millimeter  paper,  putting  thereon  three  lines  representing,  respect- 
ively, the  river  bottom  1867,  the  lower  water  of  1867,  the  low  water 
of  1901. 

The  profile  doesn’t  state  upon  what  scale  it  is  dravm.  It  is 
made  up  of  large  centimeter  squares,  approximately  two  inches 
square,  containing  in  turn  millimeter  squares  approximately  three- 
eighth  of  an  inch  square,  and  these  in  turn  contain  minute  squares 
for  still  smaller  dimensions. 

But  while  the  Woermann  profile  is  put  on  millimeter  paper,  it  is 
not  drawn  upon  the  metric  system  (^‘I  substitute  feet  and  tenths  of 
feet  for  millimeters.  Each  of  these  centimeter  squares  horizon- 
tally represents  1,000  feet”)  Proceedings,  3814. — The  vertical  cen- 
timeter squares  represent  5 feet  in  elevation.  ‘‘One  of  these 
squares  would  represent  5,000  feet  in  length  andhfeet  in  elevation.” 
Abst.,  p.  1474.)  Bo  that  the  scale  is  1,000  times  magnified  in  ver- 
tical range  as  compared  with  horizontal  range.  This  magnifying 
vertical  scale  of  1,000  to  1 doesn’t  occur  on  the  Government  pro- 
files. (Abst.,  p.  1474.) 

(The  Cooley  profile,  ‘‘Cooley  Exhibit  3,”  “is  drawn  to  a 
scale  of  2,000  feet  to  1 inch  horizontally  and  10  feet  to  1 inch 
vertically.  It  is  customary  to  exaggerate  the  vertical  scale  suf  - 
ficient to  visualize  the  slopes  and  declivities.”  (Cooley,  Abst., 
p.  814.) 


290 


The  WiLsoii  profile  is  on  a scale  vertically  of  15  feet  to  the  inch 
and  horizontally  5,000  feet  to  the  inch,  or  as  1 to  333. 

Tlie  Cooley  j)rofile  magnifies  tlie  vertical  scale  as  2,000  to  10  or 
as  200  tol. 

The  Woei*niann  i)rofile  magnifies  the  vertical  scale  1,000  to  1. 

The  obvious  effect  of  the  latter  was  to  magnify  and  exaggerate 
the  slopes  to  the  greatest  practical  extent,  and  to  make  the  slopes 
seem  as  steep  and  forbidding  as  possible  and  mislead  the  court  into 
an  over-estimate  of  their  deterring  effect  against  navigation. 

This  exaggeration  extends  throughout  the  testimony  for  the  de- 
fense. 

And  the  use  of  a profile  which  did  not  state  the  scale  upon  which 
it  was  drawn  to  prevent  the  easy  correction  of  the  exaggeration. 

And  the  use  of  millimeter  paper  to  represent  feet  and  tenths  of 
feet  was  done  with  the  effect  of  still  further  complicating  and  con- 
fusing the  subject  by  raising  ambiguities  between  the  metric  system 
and  the  duodecimal  American  system  of  measurements. 

Wilson ^s  Profile  of  1867 — The  Tivo  Shallow  Points. — Woer- 

mamPs  Testimony. 

‘^On  the  elevation  at  the  mouth  of  the  1867  profile  showed 
four-tenths  of  a foot,  whereas  the  1883  profile  shows  a foot  and 
two-tenths  (3728.)  On  the  rapids  at  Joliet  the  profile  of  1867 
contains  five-tenths  of  a foot.  The  1883  profile  shows  a foot  and 
two-tenths  or  a foot  and  three-tenths — something  like  that,  I 
donT  remember  exactly.’^  (Abst.,  p.  1443.) 

Mr.  Cooley  testified  that  the  profile  of  1883  had  been  accepted 
ever  since  it  was  made  as  the  standard  low  water  profile  of  the 
river.  There  was  no  contradiction  of  this.  The  profile  of  1867  was 
made  in  the  dryest  year  that  ever  was  known  in  the  history  of  the 
river. 

Between  Joliet  and  the  mouth  of  the  river  it  gives  ten  vertical 
lines  crossing  the  profile,  with  indications  that  measurements  were 
taken  at  those  ten  points. 

The  profile  of  1883  between  the  same  points  shows  97  sound- 
ings and  measurements. 

There  were  no  gauges  upon  the  Des  Plaines  at  the  time  the  ’67 
profile  was  made. 


As  to  tills  M r.  C/Ooley  said : 

Tlie  profile  of  LSOT  lueasured  rlie  rest  of  the  course  between 
Joliet  and  the  mouth  of  -the  Des  Plaines,  and  represents  depths 
varying  from  a foot  and  a lialf  to  20  feet,  the  latter  being  in  Lake 
Joliet,  with  just  2 and  possibly  3 points  where  from  100  to  200 
feet  the  river  was  half  a foot  deep. 

The  river  at  that  time  was  depleted  by  the  canal  and  the  other 
causes  to  which  we  elsewhere  refer,  so  that  it  had  less  than  one- 
half  of  its  own  water  running  in  its  bed  at  the  time.  No  good  case 
against  the  navigability  of  the  Des  Plaines  by  shallow  draft  navi- 
gation can  be  built  up  upon  the  profile  of  1867. 

Depths. — The  Macomb  Profile  of  1874,  Cooley  Exhibit  36 
(Abst.,  pp.  1185-1933.) 

This  profile  is  drawn  on  the  horizontal  scale  of  600  feet  to  the 
inch  and  on  the  vertical  scale  of  30  feet  to  the  inch.  This  profile 
gives  130  lines  of  soundings  across  the  river  above  Treat’s  Island, 
11  lines  of  soundings  across  the  left-hand  channel  at  Treat’s  Island, 
13  lines  of  soundings  across  the  right-hand  channel  at  Treat’s 
Island,  67  lines  of  soundings  between  Treat’s  Island  and  the  month 
of  the  river,  or  221  lines  of  soundings  in  all. 

The  shortest  of  these  lines  exhibits  3 soundings,  and  some  have 
as  many  as  10  soundings,  and  the  lines  will  average  5 soundings  to 
the  line  or  1,357  in  the  16  miles  of  river. 

Macomb  Profile. — Least  Depth  Shown  by  the  Soundings. 

The  smallest  figures  showing  the  least  depths  in  this  entire  area 
of  1,357  soundings  are  as  follows : 

Just  above  the  bridge  and  below  dam  No.  1 in  Joliet  are  two 
soundings,  reading  as  follows: 

‘M.O. ” Each  of  these  is  in  a line  of  soundings  running  crosswise 
of  the  river,  none  of  which  is  less  than  2.0.  In  the  first  one  the  great- 
est depth  is  ‘‘7.09”  and  in  the  second  the  greatest  depth  is  “7.08.” 
Just  at  the  word  “Michigan”  next  the  lock  below  the  railroad 
bridge  “1.0.”  This  is  in  a line  of  soundings  running  across  the 
river,  which  are  as  follows:  “2.3 — 3.0 — 3.3 — 2.9.”  Next  a short 
distance  below  the  line  E'F  occurs  a line  of  soundings  as  follows : 


‘M.3— 1.4— 1.0.”  Small  island,  ‘‘2.3— 2.0— 1.8.”  (This 
shows  that  tlie  left-hand  ehannel  of  the  river  was  2.0  feet  deep 
and  the  right-hand  ehannel  1.4  feet  deep  and  at  the  sounding 
just  on  the  shore  of  the  island  it  was-l  foot  deep.) 

THKAt's  island  DEDTHS  as  shown  by  MACOMB  PROFILE  OF  74. 

A hank  of  soundings  extends  across  the  river  just  at  the  head  of 
the  island  reading  as  follows,  beginning  on  the  right  hank:  “3.7 — 
5.0— 4.0— 5.3— 4— 2.7— 4.2.  ’ ’ 

doing  down  the  left-hand  channel  at  Treat’s  Island  the  shallow- 
est si)ot  is  indicated  thus:  “1.0 — 1.2 — 1.0.”  Second  line:  “2.9 — 
3.2— 3.0.” 

Near  the  mouth  of  the  river  the  last  row  of  soundings  hut  one: 
‘ ‘ 1 .2— 1.0— 1.3— 1.5— 1 .0.  ’ ’ 

These  are  the  only  rows  of  soundings  across  the  river  which  con- 
tain a sounding  anywhere  that  doesn’t  exceed  one  foot.  And  each  of 
these  wthich  is  only  one  foot  or  less  than  a foot  is  in  a line  or  hand 
of  soundings  showing  water  considerably  deeper  than  one  foot. 

The  soundings  which  read  “1.0”  or  less  are  soundings  on  the 
extreme  bank  of  the  river  and  each  of  them  show  that  the  water  in 
the  middle  of  the  river  is  considerably  more  than  a foot  deep.  This 
on  an  array  of  over  1,200  soundings. 

This  Macomb  profile  of  1874  has  1,357  soundings  in  221  bands  go- 
ing across  the  river,  or  a little  more  than  six  soundings  in  each 
hand.  The  221  bands  occur  in  the  16  miles  of  river,  or  an  average 
of  about  14  bands  to  the  mile,  an  average  of  a hand  of  soundings 
crossing  the  river  every  380  feet.  They  present  no  line  of  crossing 
the  river  ivliere  there  ivas  not  one  foot  of  ivater  in  the  deep  place. 

Not  a place  can  be  found  on  the  entire  area  of  the  river  where  the 
line  of  soundings  goes  across  the  river  and  doesn’t  find  water  ex- 
ceeding a foot  in  depth. 

These  lines  of  soundings  are  taken  every  500  lineal  feet  in  the 
length  of  the  river,  and  extend  clear  across  the  stream  for  each 
l3and  and  most  of  the  way  they  are  taken  at  more  frequent  intervals 
than  every  500  lineal  feet;  and  in  the  whole  course  of  the  river  not 
a line  of  soundings  could  he  carried  across  the  river  at  right  angles 
to  the  stream  as  these  were,  without  finding  water  more  than  one 


29:; 

foot  deep.  The  sliallowest  of  all  just  at  the  head  of  Treat’s  Island, 
where  the  lowest  depth  of  all  was  1.2  feet,  which  is  14.4  inches ; 450 
feet  above  the  water  is  1.7  feet  deep,  and  400  feet  below  the  water 
is  3.4.  There  is  one  spot  that  a boat  could  find  in  going  from  Dam 
No.  1 to  the  mouth  of  the  river  in  1874  where  the  shallowest  water 
it  would  have  to  pass  would  be  14.4  inches  deep  for  a distance  of 
perhaps  400  or  500  feet. 

Cooley  Ex.  2 (an  outline  Map  and  Profile  and  Cooley  Ex.  3 (the 
Consolidated  profile)  are  inserted  here. 

A full  list  of  the  Macomb  soundings  follows : 


T^.4 


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33DlD)COCOCOTH(M(MCOCOCO(MO<0  0(jO  OCO- 


0'3t0000^000l0ic0c003  0'10c00^ci00 
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DOOt-O  O OCOCO  (MtNt^OO 

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301 


4.  ThK  AirriFK’IAI;  DEPIJ^TIONS  of  the  DES  IM.AINES  HIVER. 

43io  evidence  shows  tliat  the  Des  Plaines  Kiver  was  artifieially 
depleted  and  its  natural  volume  of  water  diminished  ])y  artificial 
devices  tliroughout  tlie  period  from  1848-1900.  Tliese  depletions 
cut  oft  the  flow  of  water  into  the  river  and  took  out  of  its  bed  the 
water  that  was  in  the  river. 

Noteworthy  among  these  artificial  depletions  were  the  follow- 
ing: 

(1)  THE  STATE  DITCH, 

constructed  in  1846.  This  is  shown  on  ^^Orr  Exhibit  5,”  Abst.,  p. 
1919,  where  it  is  delineated  and  labeled  Artificial  Channel  200 
ft.  wide.’’  Its  object  was  to  cut  off  both  the  overflow  water  of  the 
Des  Plaines  and  the  Saganaskee  Swamp.  It  did  take  the  over- 
flow waters  of  the  Des  Plaines  Eiver  out  of  the  river,  and  caused 
them  to  run  away  northeasterly  into  the  Chicago  Eiver;  and  it 
cut  off  the  water  of  the  Saganaskee  Swamp  from  running  into  the 
river  and  made  them  run  away  northeasterly  into  the  Chicago 
Eiver. 

(2)  THE  ILLINOIS  AND  MICHIGAN  CANAL 

cut  off  the  natural  drainage  tributary  to  the  Des  Plaines  itself, 
completed  in  1848.  The  ditch  was  on  one  side  and  the  river  and 
the  canal  was  on  the  other.  This  a])pears  from  ‘dirr  Exhibits  4 
and  5.” 

(a)  In  constructing  the  canal  itself,  they  used  the  old  river 
bed  part  of  the  way  and  picked  the  river  up  and  shoved  it  to  one 
side  and  narrowed  it  down  to  what  would  constitute — as  the  canal 
constructors  supposed — a normal  kind  of  a river,  which  should 
perform  the  great  end  of  a river — namely,  to  feed  the  canal. 

On  ‘^Orr  Exhibit  5,”  the  Canal  Map,  will  be  seen,  southeast  of 
the  state  artificial  channel,  the  legend  ‘dlld  bed  of  the  Des  Plaines 
Eiver,  now  used  as  a canal.” 

The  natural  water  course,  extending  through  a wide  swamp 
area,  can  not  be  picked  up  and  pushed  to  one  side  in  its  entirety; 
much  of  the  water  naturally  tributary  to  that  channel  will  still 
continue  to  run  in  the  channel.  So  it  proved  here : the  Des  Plaines 
was  a smaller  river  after  it  had  been  pushed  to  one  side  and  the 


canal  given  its  early  l)e(I  as  a water  course;  and  the  canal  itself 
received  large  contril)iitions  from  the  drainage  of  the  country  that 
used  to  feed  the  river.  When  in  addition  to  tliat,  a ditch  200  feet 
wide  is  constructed  across  the  swamp,  running  away  from  the 
river  over  to  the  Chicago  Kiver — the  subtraction  of  the  natural 
contributions  of  the  Saganaskee  Swamp  to  the  river  were  com- 
plete. 

(b)  There  were  numerous  small  streams,  several  of  which  are 
sketched  on  the  Orr  Exhibits,  as  running  down  to  the  old  river  bed 
and  cut  off  by  the  canal.  These  were  subtracted  from  the  Des 
Plaines. 

(c)  Again  the  testimony  shows  the  bottom  of  the  canal  was 
from  8 to  10  feet  lower  than  the  bottom  of  the  river,  and  extended 
parallel  and  alongside  of  the  river.  Water  percolated  and  filtered 
from  the  bottom  of  the  river  and  down  into  the  canal.  The  dig- 
ging of  the  canal  in  this  position  acted  like  tapping  the  bottom  of 
the  river  throughout  the  extent  of  the  line  from  Summit  to  Joliet. 

(3)  THE  USE  OF  THE  DES  PLAIXES  EIVEE  TO  SUPPLY  TWO  FEEDERS  OF 
THE  ILLINOIS  AND  MICHIGAN  CANAL. 

The  depletions  of  the  river  by  building  State  ditches  and  planting 
the  canal  in  the  river  bed  were  bad  enough,  but  were  far  surpassed 
by  the  bodily  appropriation  of  the  entire  waters  of  the  river  to  feed 
the  canal. 

(a)  There  are  two  of  these  feeders  from  the  Des  Plaines;  the 
principal  one  was  at  Joliet.  Dam  No.  1 was  thrown  across  the 
stream  by  the  Canal  Commissioners.  The  canal  after  being  con- 
ducted from  the  left-hand  side,  into  the  river,  into  the  basin  above 
this  dam,  was  taken  across  the  river  by  being  let  out  through  a 
guard-lock  and  other  appliances,  on  to  the  right-hand  side  of  the 
river  below  the  darn.  An  embankment  was  erected  between-  the 
river  basin  and  the  Canal  on  the  right,  and  a feeding  gate  put 
into  the  embankment. 

Dam  No.  1 was  11^  feet  high.  If  the  water  in  the  basin  were  111 
feet  deep  it  would  be  level  with  the  top  of  the  dam;  when  the  Des 
Plaines  was  high,  it  would  run  over  the  top  of  the  dam. 

If  the  Guard-Lock  and  Feeding  Gate  had  never  been  opened  the 


riv(M*  would  prosoiitly  have  filled  lli(‘  l)asin  and  Ukui  run  ov(u-  the 
lop — l)e(*ause,  as  one  ot*  the  witnesses  state,  the  darn  does  not  itself 
eonsuuie  water;  as  inueli.  would  have  to  run  out  somewhere  as  run 
in  from  above. 

I)ut  when  the  Guard-Lock  and  Feeding  Gates  were  opened  tlie 
water  ran  from  tlie  basin  into  the  canal,  wbicli  was  6 feet  deep. 
For  about  three  months  in  the  year  the  river  was  so  hi^rh  that  it 
not  only  fed  a stream  6 ft.  deep  and  60  ft.  wide  into  the  canal,  but 
it  also  ran  over  the  top  of  the  dam  11^  ft.  high.  With  the  passing 
of  the  period  of  high  water,  it  ceased  to  run  over  the  top  of  the 
dam,  but  continued  to  run  from  above  into  the  basin  at  the  same 
rate  that  it  ran  out — namely,  by  a stream  60  ft.  wide  and  6 ft. 
deep. 

When  the  period  of  low  water  came  on,  the  Des  Plaines  was  not 
equal  to  feeding  into  the  canal  continuously  a stream  60  ft.  wide 
and  6 ft.  deep;  the  entire  water  of  the  river  ran  through  the  side 
gate  into  the  canal  and  practically  no  water  could  be  found  in  the 
strip  of  river  south  of  the  canal. 

Joliet  Lake  with  its  deeply  gouged-out  basin  still  continued  to 
hold  a large  amount  of  water,  but  there  was  a spot  about  a mile 
long  between  Dam  No.  1 and  the  entrance  to  Joliet  Lake,  and  an- 
other spot  just  at  the  head  and  foot  of  Treat’s  Island  for  a shorter 
distance,  where  there  was  substantially  no  water  in  the  river  dur- 
ing the  period  of  low  water,  when  the  entire  supply  of  the  river 
was  diverted  into  the  canal. 

The  canal  from  Dam  No.  1 extended  southwesterly  till  it  crossed 
the  Du  Page  River  by  a system  of  locks.  Here  it  absorbed  enough 
water  from  the  Du  Page  River  to  give  back  to  the  Des  Plaines 
River  a considerable  portion  of  what  it  had  received  from  Dam 
No.  1. 

(b)  The  I>es  Plaines  was  also  used  as  a feeder  upon  the  Sum- 
mit between  the  Chicago  River  on  one  hand  and  the  Lockport 
slope  on  the  other.  A short  feeder  connection  was  established  from 
the  river  at  Summit,  by  which  the  water  ran  both  ways  from  the 
river  into  the  canal — partly  down  hill  toward  Chicago  and  partly 
down  hill  toward  Lockport.  This  in  time  was  replaced  by  the  use 
of  the  Chicago  Bridgeport  pumps. 


The  defense  produced  several  witnesses,  who  stated  that  they 
had  often  seen  tlie  Des  Plaines  Kiver  so  low  that  they  could  cross 
it  dry  shod  in  summer.  Most  of  Ihem  when  pressed  located  this 
di*y-sliod  strip  between  Dam  No.  1 above  and  the  mouth  of  the 
Du  Pai?e  Diver  below — showing  that  they  were  speaking  of  the 
rjver  bed  as  they  found  it  after  the  entire  river  water  had  l)een 
turned  into  the  canal. 

(4)  THE  COOK  COUNTY  DRAINAGE  DITCH  OF  1852  DRAINED  MUD 
I.AKE  AWAY  FROM  THE  DES  PLAINES. 

In  1852  the  Cook  County  Drainage  Commissioners  constructed 
a channel  extending  from  the  West  Fork  and  the  South  Branch  of 
the  Chicago  Eiver  further  westward  into  the  Mud  Lake  region, 
and  causing  it  to  operate  as  a drain  of  Mud  Lake,  and  so  making 
the  waters  of  that  lake,  which  had  originally  all  run  out  through 
the  Des  Plaines  Eivei*  and  which  had  been  cut  off  from  the  Des 
Plaines  Eiver  by  the  construction  of  the  canal — run  out  into  the 
Chicago  Eiver,  not  merely  in  periods  of  high  water,  but  all  the 
time. 

These  ditches  of  the  Cook  County  Drainage  Commission  were 
authorized  by  the  Act  of  Februarv  17,  1851,  entitled  ‘LVn  Act  to 
drain  the  wet  lands  about  Chicago*’  (specifying  the  Mud  Lake  re- 
gion as  ‘dands  lying  in  Townships  number  38,  39  and  40  in  Eanges 
12,  13  and  14  East  of  the  3rd  P.  M.”)  L.  1851,  p.  195;  and  this 
was  superseded  by  the  Act  of  June  23,  1852,  incorporating  the 
Commission  and  adding  Township  37  to  the  list. 

L.  1852,  p.  240. 

For  a description  of  their  work,  see  Gov.  Bross’s  History  of 
Chicago,  pp.  49-50. 

(5)  THE  OGDEN-NICKERSON-WENTWORTH  DITCH. 

In  1871  the  Ogden  Ditch  was  dug.  This  extends  from  Harlem 
avenue  on  the  West  Side  northeasterly  to  48th  street  on  the  West 
Side,  being  the  City  Limits,  as  shown  by  the  Eand-McNally  map. 
This  ditch  at  the  point  of  its  origin  in  Harlem  avenue,  entered  the 
old  river  bed  of  the  Des  Plaines.  There  was  a small  natural  berm 
piece,  aided  by  the  work  of  beavers,  between  the  Mud  Lake  area 


Miul  the  Dos  DIaiiios  Ivivoi*,  \vlii(‘li  was  ()V(‘i*fl()waMl  and  washed  out 
ovory  spring’.  Tlio  Ogdon  Ditoli  was  built  from  tliis  very  odgo  oT 
tli('  I’ivor  bod,  over  into  tlie  West  Fork  of  the  South  I^raneli. 

ddie  drainage  of  the  Portage  or  Mud  Lake  area  water  from  tlie 
Des  Plaines  and  into  tlie  Chicago  Elver  was  now  com[)lete,  and 
soon  after  the  completion  of  the  ditch,  in  the  high  water  of  the 
spring,  the  remaining  bank  between  the  Des  Plaines  and  the  ditch 
was  washed  out,  and  the  entire  Des  Plaines  river  ran  out  through 
the  ditch  into  the  Chicago  Eiver  and  into  Lake  Michigan.  Ex- 
Mayor  Wentworth  refers  to  this,  in  the  passage  elsewhere  quoted, 
as  being  the  restoration  of  the  Des  Plaines  Eiver  to  its  ancient 
channel. 

(6)  THE  OGDEN  DAM. 

The  Ogden  Dam,  built  by  the  City  of  Chicago  in  1876-1877, 
partially  separating  the  river  from  the  ditch,  prevented  the  Des 
Plaines  Eiver  from  running  out  into  the  Chicago  Eiver  in  high 
water ^ and  prevented  the  waters  of  Mud  Lake  and  the  surrounding 
swamps  from  running  into  the  Des  Plaines  in  low  u'afer,  the 
greater  portion  of  the  year.  For  construction  and  effect  of  this 
dam  see  testimony  of  Benezette  A¥illiams,  of  the  first  Drainage 
Board  of  the  Sanitary  District  of  Chicago  (Abst.,  p.  341),  testi- 
mony of  Lyman  E.  Cooley  (Abst.,  ]).  826),  and  re})orts  of  Chicago 
Commissioner  of  Public  AVorks  (Alist.,  pp.  342-3-4.) 

(7)  THE  RIVEll  DIVERSION  BY  THE  SANITARY  DISTRICT  OF  CHICAGO  IN 

THE  YEARS  1892-1894. 

The  Sanitary  District  of  (liicago,  in  constnudiug  the  Drainage 
Canal,  naturally  and  wisely  decided  that  the  canal  ought  to  be 
built  on  the  lowest  practicable  level  through  the  old  swamp  region 
— that  the  Des  Plaines  Eiver  had  naturally  ti’aced  the  line  for  such 
a canal ; that  this  line  had  been  more  or  less  broken  and  inter- 
rupted by  the  wanderings  of  the  river;  but  that  a straight  line 
canal  might  be  laid  out  from  Eiverside  to  Lock])ort — a distance  of 
some  15  miles  in  the  river  bed,  disregarding  the  windings  of  the 
stream,  and  where  those  windings  were  fai*  enough  away  from  the 
straight  course,  to  let  them  alone,  but  where  the  river  came  nearer 


than  oiie-]ialf  a mile  of  tlie  eanal.  it  on^lit  to  ])e  pieked  up  and 
moved  away. 

And  this  was  done;  tliey  i)ieked  tlie  river  up  and  puslied  it  over 
to  one  side  and  straightened  it  out  and  built  liigh  levees  and  em- 
bankments on  each  side  of  it,  and  then  laid  the  eanal  out  in  the 
abandoned  bed,  connecting  the  portions  of  the  river  bed  by  a 
straight  ditch,  wliere  the  river  course  wound  away  from  the 
straight  line. 

This  was  known  as  the  Eiver  Diversion.  It  did  in  a much  more 
scientific  and  complete  fashion  what  had  been  done  by  the  State 
Ditch  and  Illinois  and  Michigan  Canal.  It  cut  off  from  the  Des 
Plaines  Eiver  everything  in  the  way  of  a feeder  that  that  great 
area  of  low  land  contributed. 

(8)  INHABITATION^,  DENUDATION,  TILING,  DITCHING,  DEAINING  AND 
CULTIVATION  DEPLETED  THE  EIVEK. 

The  inhabitation  of  the  country,  the  denudation  of  its  groves 
and  woods,  the  tillage  of  its  soil,  the  ditching,  tiling  and  draining 
of  the  farms,  the  reclamation  of  the  swamps,  and  the  rapid  devel- 
opment into  city  subdivisions  of  the  land  which  prior  to  1848  had 
been  submerged  for  one-half  of  the  year— all  this  had  a striking 
effect  in  depleting  the  water  supply  of  the  river. 

The  large  triple  areas  of  swamp  land — Portake  Lake  with  its 
two  arms,  and  the  Saganaskee  swamp  a few  miles  further  south- 
west— acted  as  natural  reservoirs.  They  received  the  rainfall  of 
hundreds  of  square  miles,  and  the  drainage  by  the  little  streams, 
shown  on  the  Orr  Exhibits,  for  hundreds  of  square  miles  more, 
and  impounded  them  in  these  lakes,  which  slowly  fed  outwardly 
into  the  Des  Plaines  Eiver,  as  the  period  of  high  water  subsided  in 
the  latter  part  of  June.  These  natural  reservoirs  kept  the  level 
of  the  Des  Plaines  at  a medium  stage  throughout  the  summer 
months. 

In  dry  years  the  swamps  themselves  would  gradually  give  out 
their  supplies  until  large  portions  of  their  beds  became  bare  and 
dry  in  the  late  summer  and  autumn. 

The  forests  acted  as  natural  sponges  and  retainers  of  the  rain- 
fall, and  increased  the  precipitation  of  rain  itself. 


The  water  wliicli  would  he  retained  and  fed  out  slowly  for  weeks 
from  these  retaining  forests  and  impounding  reservoirs  slipped 
away  in  floods  in  a very  few  days  after  the  forest  had  been  cut 
awaj^  and  the  swamps  reclaimed  and  converted  into  filled  ground 
and  dry  land. 

The  amount  of  rainfall  was  diminished  by  the  cutting  away  of 
the  forests,  and  the  period  occupied  by  it  in  passing  from  the 
ground  into  the  streams,  from  streams  into  Portage  Lake  and 
from  Portage  Lake  and  Saganaskee  Swamp  into  the  Les  Plaines 
Eiver  was  reduced  from  a period  of  months  to  a period  of  days. 
The  effect  of  this  was  to  shorten  the  duration  of  medium  stages  of 
low  water  and  to  increase  the  low  water  period. 

In  periods  of  extreme  drought  the  swamps  themselves  would, 
in  a state  of  nature,  eventually  run  out  and  the  supply  of  the 
stream  would  suddenly  in  the  course  of  a week  drop  to  one-half  or 
even  one-fifth  of  its  normal  volume. 

An  important  part  of  the  inhabitation  and  change  resulting  from 
the  occupation  by  man  of  this  territory  is  the  erection  of  railway 
embankments  and  the  throwing  up  of  macadam  roads  and  other 
similar  roads. 

On  ‘‘Hillebrand  Exhibit  1”  and  the  profile  ^strip  No.  2,  there 
will  be  found  between  Bridgeport  on  the  east  and  Lockport  on  the 
west,  the  elevations  of  18  elevated  streets  and  railway  tracks, 
which  have  been  thrown  up  anywhere  from  5 to  20  feet  above  the 
natural  level  of  the  ground.  The  old  Archer  Eoad,  built  by  the 
Canal  Commissioners  in  1846,  was  similarly  elevated. 

Every  one  of  these  formed  a dam,  obstructing  the  flow  of  drain- 
age into  the  Des  Plaines,  and  turned  it  back  toward  the  Chicago 
Eiver. 

The  detailed  testimony  of  Mr.  Cooley  shows  that  the  depths  of 
the  river  may  be  divided  at  the  Eiverside  gauge  into  four  stages, 
viz. : 

A.  Water  having  an  elevation  of  18  feet,  which  is  6 or  7 feet 
deep  in  the  16  years  from  1887  to  1904,  inclusive.  The  water 
stood  at  this  depth  for  3.62  days  in  each  year,  on  the  average. 

B.  Water  standing  at  an  elevation  of  13.8  feet,  or  a depth  of  24 
feet.  It  occupied  this  stage  on  an  average  44  days  each  year. 


Ill  each  of  these  stages  tliere  would  have  been  a passage  from 
the  Des  Plaines  River  into  the  Chicago  River,  or  the  Chicago  River 
into  the  Des  Plaines  River,  for  a boat  drawing  2 ft.  of  water,  with- 
out any  portage.  Throughout  this  period  of  between  6 and  7 
weeks  the  water  would  have  run  in  a strong  wide  stream  from  the 
Des  Plaines  River  into  the  Chicago  River,  through  the  Ogden 
Ditch,  if  the  Ogden  Dam  had  not  obstructed  its  course. 

C.  The  period  when  the  water  stood  at  an  elevation  of  13  feet 
on  the  gauge,  or  1.7  feet  deep,  which  lasted  on  an  average  for  65.9 
days  per  annum  throughout  the  16  years.  This  period  would  cor- 
respond closely  to  what  was  called  by  Graham  and  Phillips  ^Ghe 
Period  of  the  Two-Mile  Portage,”  and  the  three  periods  together 
would  amount  to  114  days,  or  nearly  four  months  out  of  each 
twelve  months  in  these  16  years. 

As  to  these  three  periods,  Mr.  Cooley  testified  ^ ‘ that  the  effect  of 
the  obstructions  and  depletions  of  the  river  were  such  that  a res- 
toration of  natural  conditions  would  have  prolonged  these  three 
periods  from  40  to  50  per  cent” — ^that  is,  the  water  would  have 
been  between  5 and  6 days  instead  of  3 2-3  days  per  annum; 
it  would  have  stood  24  feet  deep  66.6  days ; and  it  would  have  stood 
1.7  feet  deep  98.8  days— the  whole  amounting  to  170.83  days,  in- 
stead of  113.92  days. 

D.  Mr.  Cooley’s  figures  show  a fourth  stage,  when  the  water  at 
the  Riverside  gauge  showed  an  elevation  of  12.4  feet,  or  1.1  feet 
deep  in  the  river  for  102  days  per  annum  in  each  of  the  16  years 
on  an  average. 

The  Des  Plaines  River  should  not  be  judged  merely  by  the  ex- 
treme pieces  of  evidence : one,  the  minimum  possible  registration  of 
fiow,  taken  by  the  Canal  Engineers  in  1830;  and  the  other  the 
loose  testimony  of  settlers  that  they  have  crossed  it  dry  shod  be- 
low the  dam. 

1.  As  to  the  first— that  it  had  a minimum  which  was  inade- 
quate to  supply  the  canal — we  have  seen  that  the  canal  builders 
demanded  a supply  of  Avater  sufficient  to  fill  the  canal  60  feet  wide 
and  6 feet  deep,  in  spite  of  all  the  losses  by  lockage,  leakage,  filter- 
ation  and  artificial  CAmporation;  and  they  demanded  this  all  the 
year  round.  The  total  that  they  put  as  their  maximum  requisite 


was  r)()(),()0()  IVoi  of  water  per  hour  (History  of  the  Cjanal, 

Canal  Report,  RKK),  p.  174),  and  tliey  fonrid  tliat  the  i)es  Plaines 
ill  ordinary  seasons  would  provide  117,000  cnhie  feet  per  hour,  or 
more  than  one-fonrtli  of  the  amount. 

And  this  amount,  in  its  natural  hed — without  the  losses  hy  leak- 
age and  Alteration  into  the  ground  from  the  new  artificial  hed — 
while  not  sufficient  to  make  a stream  60  feet  wide  and  6 feet  deep, 
constituted  an  ample  supply  of  water  for  river  navigation  as  that 
art  was  practiced  for  one  hundred  years  prior  to  the  building  of 
the  canal. 

2.  As  to  the  second  proposition — that  men  had  walked  across 
the  river  dry-shod  below  the  dam,  it  simply  signifies  that  the  dam 
was  a water-tight  dam,  and  that  there  was  not  enough  water  in  the 
river  to  make  a stream  60  feet  wide  and  6 feet  deep,  to  go  out 
through  the  side  gate,  and  still  leave  water  enough  to  run  over  a 
dam  11  feet  high. 

We  append  a summary  of  Mr.  Cooley’s  testimony  on  the  sub- 
ject of  these  depletions  of  the  river. 

There  have  been  two  great  restorations  of  water  to  the  river, 
which  do  more  than  restore  and  now  greatly  increase  its  flow. 
They  are  the  Deep  Cut  of  1871  and  the  Sanitary  District  Flood, 
which  was  turned  in  January  17,  1900.  Since  this  latter  has  been 
turned  in,  we  have  seen  that  the  Des  Plaines  Diver  forms  a stream 
from  4 to  6 feet  deep  all  the  year  round  in  the  shallowest  points. 

SUMMARIES  OF  TESTIMONY  OF  ENGINEER  COOLEY  RESPECTING  DEPLETIONS 
OF  THE  DES  PLAINES  RIVER RIVERSIDE  GAUGE AND  THE  CONSTRUC- 

TION OF  THE  I.  & M.  AND  SANITARY  DISTRICT  CHANNELS. 

654  The  first  was  the  construction  of  the  Illinois  and  Michigan 
Canal,  opened  in  1848,  from  the  junction  of  the  two  forks  of 
the  south  branch  at  Bridgeport,  southwesterly  across  the 
southern  arm  of  Portage  Swamp  to  Summit,  thence  along  the 
left  side  of  the  valley  to  Joliet.  (Abst.,  p.  824.) 

658  In  addition  to  the  canal,  the  State  of  Illinois  constructed 
a big  drain  called  the  State  Ditch,  ])y  way  of  Brighton  to  the 
South  Fork,  for  the  purpose  of  draining  the  area  which  had 
been  intercepted  south  of  the  Illinois  and  Michigan  Canal. 

The  effect  of  the  State  Ditch  as  a part  of  the  canal  system 
going  through  Mud  Lake  upon  the  amount  of  water  flowing 
into  and  down  the  Des  Plaines  Diver  was  that  it  was  dimin- 


isliecl  by  whatever  water  came  from  the  territory  which  has 
been  thus  intercei)te(i  by  the  Illinois  and  Mjchiffan  Canal. 
(Abst.,  }).  8:25.) 

()51  The  second  interference  was  the  cutting  of  the  Chicago  di- 
vide in  the  vicinity  of  Kedzie  avenue  in  1852  t)y  the  CooJc 
County  Drainage  Commissioners.  They  cut  a channel  from 
Mud  l^ake,  sometimes  called  Portage  Lake,  La  Petit  Lac, 
across  the  divide,  which  enlarged  until  it  became  the  present 
west  fork  and  extended  into  the  Mud  Lake  region. 

The  third  change  was  tlie  ditching  of  the  Portage  Swamp 
region  by  Nickerson,  Ogden  and  Wentworth  ditch  to  the  old 
Portage  slough  at  the  range  line  between  Ranges  12  and  1c 
East,  on  or  about  1871.  (Abst.,  p.  824.) 

Eourth,  between  1866  and  1871,  the  Illinois  and  Michigan 
Canal  was  deepened  according  to  the  original  plans  for  the 
construction  of  said  canal,  so  that  its  summit  level  was  at  the 
level  of  the  Chicago  River  and  Lake  Michigan.  (Abst., 
p.  824.) 

655  Fifth,  in  1876  and  1877  the  City  of  Chicago  constructed  at 
the  head  of  the  Ogden  Ditch,  and  across  the  Portage  slough 
on  the  range  line  between  12  and  13  north  of  Summit,  the 
Ogden AVent worth  dam.  (Abst.,  p.  824.) 

Sixth,  the  diversion  of  the  waters  in  the  Des  Plaines  both 
before  and  after  deepening  by  the  Illinois  and  Michigan  Canal. 

Seventh,  the  construction  of  the  River  Diversion  in  1892  to 
1894,  by  the  Sanitary  District  of  Chicago.  (Abst.,  p.  824.) 

Eighth,  the  construction  of  the  Sanitary  Canal,  opened  in 
elanuary,  1900,  and  that  general  occupation,  inhabitation,  till- 
age and  reclamation  of  the  soil  would  be  considered  such  an 
interference,  and  that  that  would  make  nine.  (Abst.,  p.  824.) 

656  The  effect  of  the  Illinois  and  Michigan  Canal,  which  was 
cut  through  from  Summit  to  Bridgeport,  across  the  arm  of 
Portake  Lake,  was  to  intercept  so  much  of  the  watershed  as 

657  lay  south  of  the  I.  & M.  Canal  and  was  tributary  to  Portage 
Lake  and  thence  to  the  Des  Plaines  River,  and  also  so  much 
of  the  reservoir  of  the  Portage  Swamp  as  lay  south  of  the  loca- 
tion of  that  canal  and  tended  to  equalize  the  flow  in  the  Des 
Plaines  River. 

The  waters  from  the  Upper  Des  Plaines  and  from  the  water- 
shed tributary  to  the  12-mile  level  and  Portage  Swamp  in 
times  of  high  water  flooded  these  lakes  and  marshes  and 
streams  to  a considerable  depth,  which  had  a very  large  ame- 
liorating effect  in  mitigating  floods  and  in  prolonging  the 
stage  of  water. 

The  I.  & M.  Canal  diminished  the  proper  watershed  of  the 
Des  Plaines  River  and  to  that  extent  absolutely  diminished  a 
volume  tributary  to  it.  (Abst.,  pp.  824-5.) 


:iii 


In  relVroiU'c  lo  this,  iiiulei*  (!()iisi(leral)le  pressiu-e,  All-.  VVoer- 
iiiaiin,  llie  exiiert  Tor  the  dereiulaiit,  testified  as  follows: 

‘‘It  hasn’t  been  my  ohsei-vatioii  tJiat  there  is  always  a slml- 
Jow  place  immediately  below  a dam  in  ordinary  states  of 
water.  J know  it  is  not  so.  1 would  say  that  it  depends  oji 
the  local  conditions  entirely.  The  Adams’  Darn  was  a dam 
which  operated  a mill.  AVhen  a dam  operates  a mill,  usually 
there  is  a sluice  or  a flume  leading  water  away  from  the  pool 
through  a wheel,  and  then  by  a tail  race  back  into  the  streaiii 
below  the  dam.  There  was  a mill  there  at  Adams’  Dam,  and 
it  operated  wheels  in  the  mill,  and  the  water  was  taken  away 
from  the  river  and  returned  to  the  river  below  the  dam.  And 
I have  known  of  cases  where  those  tail  races  would  be  two  or 
three  miles  long.  In  that  stretch  from  the  dam  down  to  the 
place  where  the  tail  race  returned  the  water  to  the  river, 
there  would  be  less  water  in  the  river  than  there  was  above 
the  dam,  under  those  conditions,  and  there  would  be  a shallow 
place  below  the  dam.  And  if  the  diverting  channel  were  eight 
or  ten  miles  long,  there  would  be  a shallow  place  eight  or 
ten  miles  long.  Then  the  shallows  caused  by  such  a dam  would 
extend  just  as  long  as  the  diversion  channel  extended.  And 
that  has  been  true  of  the  bulk  of  the  dams  I have  seen.” 
(Abst.,  p.  1503.) 

That  the  entire  water  of  the  river  was  turned  into  the  canal, 
necessarily  leaving  a place  below  for  people  to  cross  ^^dry  shod,” 
is  corroborated  by  the  following  statement  in  Canal  Trustees  v. 
Haven,  5 Gilni.,  at  p.  554: 

“On  the  20th  of  A])ril,  1848,  the  defendants  (Canal  Trus- 
tees) diverted,  or  caused  to  be  diverted  into  the  Canal  for 
the  use  of  said  Canal  from  the  natural  channel  of  the  River, 
the  ivhole  or  principal  part  of  the  ivaters  of  said  River,  by 
turning  the  same  from  the  basin  made  in  said  River  by  means 
of  the  dam  on  section  nine,  being  a Canal  section,  and  about 
half  a mile  above  the  dam  of  said  plaintiffs,  so  that  the  plain- 
tiffs are  wholly  deprived  of  the  use  of  the  water  at  their  said 
mills,  and  have  not  since  been  able  to  run  their  machinery.” 

FIGURES  OF  SPEECH. 

VOUIJME  OF  STREAM MINIMUM. 

The  defense  have  quoted  a statement  from  somebody  that  there 
arc  times  when  the  discharge  of  the  Dies  Plaines  would  flow  tln*ough 
a 6-inch  pipe.  Let  us  see  how  much  water  this  would  be. 

(1)  A stream  flowing  through  a square  6-inch  pipe  at  the  rate 


oi'  7!  miles  an  lioiir  (wliieli  is  tlie  current  of  the  Des  Plaines  at 
tlie  narrowest  part),  (see  Doc.  2(u))  would  discliarge  1G5  cubic  feet 
])er  minute.  ('^Idiat  is,  such  a stream  flows  fibO  feet  per  minute 
and  dis(*harges  b61)/4  feet,  i.  e.,  1()5  cubic  feet  per  minute.) 

(2)  A stream  oO  feet  wide  and  1 foot  deej)  in  the  center,  witli 
a l)ed  slanting  uniformly  from  tlie  margins  to  the  center,  and  flow- 
ing ()()0  feet  per  hour  (one-eiglitli  of  a mile),  which  is  the  current 
of  the  Des  Plaines  in  its  widest  part,  viz.:  Lake  Joliet,  would  dis- 
charge 1()5  cubic  feet  per  minute.  That  is,  the  swift  6-inch  pipe 
stream  would  equal  the  slow  moving  stream  30  feet  wide  and  a foot 
deep  at  the  center.  This  simply  shows  that  the  stream  tilling  ac- 
cording to  the  phrase  ''a  6-inch  pipe”  is  not  so  insignificant  as  it 
sounds. 

One  hundred  and  sixty-tive  cubic  feet  per  minute  amounts  to 
9,900  feet  per  hour,  while  the  Des  Plaines  at  low  water  as  gauged 
in  1830  showed  72,000  cubic  feet  per  hour  (Canal  Keport  135), 
which  corresponds  to  a stream  144  feet  wide,  2 feet  deep,  flowing 
250  feet  per  minute,  or  2.8  miles  per  hour;  while  ^Hhe  minimum 
discharge  of  the  Des  Plaines  is  only  60,000  cubic  feet  per  hourd^ 
(Bucklin’s  Survey,  reported  January  1,  1833;  Canal  Comrs’  Ke- 
port of  1900,  pp.  88-96,  and  at  p.  92  near  top  and  pp.  88,  89.)  This 
minimum  discharge  is  quoted  on  p.  204  by  Mr.  Gooding  in  1842 — 
while  he  gives  his  own  measurement  at  Cache  Island  as  117,000 
feet  per  hour,  or  nearly  double  this  amount.  And  Engineer  Buck- 
lin,  January  1,  1833,  reported  as  to  the  canal  that  “an  additional 
supply  of  102,400  cubic  feet  of  water  per  hour  will  be  required  for 
its  consumption.  The  River  Des  Plaines  in  most  seasons  would 
alone  make  up  the  deficiency.  ’ ’ 

This  discharge  of  60,000  cubic  feet  per  hour  corresponds  closely 
with  the  low  water  of  1883,  which  gives  the  Des  Plaines  a depth 
of  15  inches  at  the  shallowest  point.  (See  Cooley  consolidated 
profile.  (Abst.,  p.  817.) 

The  Post  and  Paul  gauge  showing  72,000  cubic  feet  per  hour  was 
at  “Laughton’s  Ford”  (Id.,  p.  135),  and  that  was  “north  of  the 
Portage  Lake,  a distance  of  10  miles  from  Chicago.”  (Id.,  p.  92.) 
At  Riverside,  a point  on  the  stream  above  all  additions,  in  the 
year  1900,  the  average  flow  was  19,072  cubic  feet  per  minute. 
Every  year  since  then  the  flow  has  much  exceeded  this  amount. 


•} 
• > 


The  aiiniuil  averag’c  rale  ol*  How  per  laiinite  has  heeti  as  follows: 


1')0() 

19,072 

1901 

20,974 

1902 

30,235 

1903 

35,763 

1904 

22,372 

1905 

22,265 

1906 

24,598 

1907 

45,582 

The  average  flow  per  minute  at  Riverside  for  these  eight  years 
lias  been  27,600  cubic  feet  per  minute.  Call  this  20,000  for  easy 
figuring  and  it  yields  1,200,000  cubic  feet  per  hour.  This  is  ten 
times  the  amount  found  by  the  early  tests  taken  in  extreme  low 
water.  This  is  by  actual  measurement  by  the  Sanitary  District. 
This  is  not  only  above  the  contributions  by  the  Drainage  Canal  and 
Deep  Cut,  but  it  is  at  a point  above  where  the  natural  contribu- 
tions of  the  Mud  Lake — the  Sanganaske  Swamp,  Hickory  Creek, 
Jackson  Creek  and  the  Du  Page  River  came  in,  all  of  which  swelled 
the  natural  river  above  the  location  of  the  proposed  dam. 

That  is  above  the  contributions  by  the  Portage  Lake,  the  Au 
Sauganashke  Swamp,  the  Hickory  Creek,  Riley’s  Creek  and  the 
Du  Page  River,  all  of  which  put  into  it  above  the  locus  in  quo  and 
increase  its  natural  discharge  at  the  place  in  dispute. 

To  a stream  having  minimum  discharge  of  60,000  cubic  feet  per 
hour  it  is  obvious  that  the  “6-inch  pipe”  admits  of  only  9,900  feet 
per  hour,  or  only  one-sixth  of  this  amount,  and  the  phrase  can  be 
applied  only  in  the  most  figurative  sense  and  as  roughly  indicating 
that  in  the  most  extreme  low  water  periods  when  for  months  there 
has  been  no  rainfall,  the  water  flowing  in  the  stream  conies  from 
natural  reservoirs  drawn  to  their  lowest  levels.  But  we  submit 
that  the  river  is  to  be  judged  by  its  condition  during  most  seasons, 
rather  than  by  its  minimum,  that  is  as  having  102,400  to  117,000 
cubic  feet  per  hour  instead  of  600,000.  But  accepting  now  800,000 
cubic  feet  per  minute  as  the  maximum,  and  the  6-inch  pipe  stream 
as  the  minimum,  and  the  average  nt  400,000  cubic  feet  per  minute, 
and  taking  that  average  (which  is  just  half  the  maximum  water) 
for  only  one-half  of  one  month — and  just  half  that  average,  or 
one-quarter  of  the  maximum  for  another  half  month,  and  one- 
eighth  of  that  maximum  for  another  month,  and  acce])ting  a fall  to 


the  iiiiiiiiinijn  of  ()(),000  eii})ie  feet  per  minute  (.075  of  that  max- 
imum tor  the  next  two  months,  making  four  raontlis  in  all),  the 
(‘onditions  give  us  the  following: 

(o)  For  high  water  half  month  (400,000-  cubic  ft.  per  minute) 
corresponds  with  a stream  400  feet  wide,  4 feet  deep,  flowing  3 
miles  an  hour. 

(4)  For  the  other  half -month  (200,000  cubic  feet  per  minute) 
corresponds  with  a stream  300  feet  wide,  3 feet  deep,  going  24 
miles  an  hour. 

(5)  For  the  second  month  (100,000  cubic  feet  per  minute)  cor- 
responds with  a stream  300  feet  wide,  2 feet  deep,  flowing  nearly  2 
miles  an  hour. 

(6)  For  the  third  and  fourth  months  (60,000  cubic  feet  per 
minute)  corresponds  with  a stream  or  to  a stream  300  feet  wide, 
15  inches  deep,  flowing  160  feet  per  minute,  or  nearly  2 miles  per 
hour. 

In  each  of  these  cases  the  depth  is  figures  for  the  entire  given 
width.  The  Des  Plaines  is  normally  600  feet  wide;  and  shallows 
oft  from  the  middle  towards  the  shore;  the  increased  width  and 
shallows  along  the  shore  offsetting  each  other. 

In  these  figures  the  ''minimum  discharge  of  only  60,000  cubic 
feet  per  hour’’  is  treated  not  as  the  minimum  but  as  part  the  four 
months  of  best  depth  and  best  navigation,  and  the  other  eight 
months  are  treated  as  if  the  water  discharged  were  zero. 

This  gives  four  months  of  water  15  inches  deep  and  over.  The 
steamers  "Phil  Schehel/’  the  "Black  Haivk,”  the  "Enterprise/^ 
the  "Silas  Wright^’  and  many  other  steamboats  carried  on  useful 
commerce  on  water  15  inches  deep.  The  motor  boat  of  today  runs 
light  on  9 inches  of  water  and  carries  40  tons  on  15  inches  of  water, 
and  more  than  200,000  of  them  are  in  use  today.  (See  Test,  of 
Sweeney.  (Ahst.,  pp.  321-3.) 

But  for  the  defendant  it  is  urged: 

‘ ^ The  bowlders  are  in  the  way,  and  we  have  a right  to  have 
those  bowlders  stay  there.  We  can  bring  replevin  for  those 
bowlders.  No  one  dare  touch  {hose  bowlders  without  our  con- 
sent.” 

Eeply:  That  contention  begs  the  tvhole  question.  From  a nav- 


315 


hgahlc  stream  any  sucJi  obstrucMon  may  be  removed  and  tlie  ripa- 
rian owner  takes  subject  to  tlie  pnl)lic  use  and  public  ri^ht  to  im- 
prove that  use. 

Bowlders  are  not  permanent  features  of  the  stream  l)ed.  Tliey 
were  brought  down  by  floating  ice  and  are  rolled  along  changed  in 
position  and  broken  up  by  the  action  of  the  water  from  year  to 
year. 

See  reports  of  Lee,  Hains,  Warren  as  to  bowlders  in  the  Missis- 
sippi. 

The  Snake  River  witness  for  the  defense  told  of  the  bowlders 
being  ‘‘mashed  up  into  cobble  stones’’  by  the  action  of  the  water 
there.  The  witness  Mills  stated  that  the  bowlders  were  scraped  up 
into  a dam  at  the  head  of  Treat’s  Island — and  being  rolled  into 
‘^stepping  stones”  in  one  place.  The  bowlders  are  no  more  fix- 
tures in  the  landscape  than  floating  trees  brought  down  by  high 
water.  They  lodge  for  a time,  are  rolled  over  and  on,  and  ulti- 
mately disappear. 

5.  THE  SLOPES  OF  THE  DES  PLAINES  KIVEE. 

The  Cooley  profile.  Exhibit  3,  is  itself  a complete  exhibit  of 
these  slopes.  No  criticism  has  been  made  of  any  kind  as  to  the  ac- 
curacy of  its  delineation  of  the  bottom  line  or  bed  of  the  river. 
The  slopes  of  the  river,  therefore,  are  such  as  are  shown  upon  this 
exhibit.  The  place  of  greatest  fall  in  the  bottom  line  of  the  river 
is  that  just  at  the  foot  of  Treat’s  Island. 

This  slope  at  the  foot  of  Treat’s  Island  is  the  side  of  the  bowl 
or  glacial  pool  in  the  bottom  going  off  into  one  of  the  gouged  out 
gorges  produced  by  glacial  action  in  the  formation  of  the  stream, 
similar  to,  but  not  smaller  than,  Joliet  Lake  and  Du  Page  Lake. 

The  Cooley  profile  is  divided  by  vertical  lines  one-half  inch 
apart;  and  by  the  horizontal  scale  on  the  profile  (2,000  feet  to  the 
inch)  this  half  inch  in  profile  lengih  represents  1,000  feet  in  river 
length. 

Let  us  take  on  the  profile  the  entire  fall — from  the  vertical  line, 
labeled  ^‘Foot  of  Treat’s  Island,”  to  the  4th  line  below  that;  so 
that  we  have  a fall  occurring  in  4,000  feet,  or  nearly  a mile  of  river 
length. 


This  slope  from  the  foot  of  Treat’s  Tsland  to  the  point  where 

tlie  bottom  of  .1883  ceases  to  fall  and  begins  to  rise,  is  between  4,000 
and  5,000  feet  long,  and  falls  in  that  distance  about  14  feet.  The 

profile  shows  a fall  of  1 7-16  inches  (a  little  less  than  14  inches  of 
profile  height,  and  the  vertical  scale  is  10  feet  to  the  inch — l-J  inches 
of  height  represents  15  feet.)  The  fall  is  shown  to  be  less  than 
this,  and  is  about  14  feet. 

The  fifth  vertical  line  below  that  one  labeled  ^‘Treat’s  Island” 
is  a little  below  the  13-mile  point,  noted  in  the  margin  below — just 
as  the  foot  of  Treat’s  Island  is  a little  below  the  12-mile  point. 

In  the  remaining  1,000  feet,  to  finish  out  the  mile,  the  bottom 
rises  ten-sixteenths  of  a vertical  profile  inch,  leaving  a net  fall  to 
the  mile  of  thirteen-sixteenths  of  a vertical  profile  inch,  or  just 
about  8^  feet. 

The  bottom  continues  to  rise  for  three-quarters  of  a mile  fur- 
ther down  stream,  so  that  in  the  If  miles  below  Treat’s  Island  the 
actual  fall  is  4 feet.  This  is  at  the  rate  of  feet  per  mile. 

This  line,  5,000  feet  below  the  foot  of  Treat’s  Island,  shows  two 
bottom  lines — one,  the  continuous  bottom  line  of  1883,  the  other 
the  dotted  bottom  line  of  1899.  This  shows  that  there  has  been  a 
filling  up  of  silt  between  1883  and  1899'  2^  feet  deep. 

Measured  from  the  bottom  line  of  1883,  the  bottom  falls  in  the 
mile  thirteen-sixteenths  of  an  inch,  which  represents  8^  feet ; meas- 
ured from  the  bottom  in  1899,  where  it  is  silted  up,  the  fall  in  the 
mile  is  f of  an  inch,  which  represents  6f  feet  in  the  mile. 

This  shows  how  misleading  a statement  would  be  as  to  the  fall 
of  the  river,  which  took  only  the  steepest  bit  of  the  steepest  slope 
— which  continues  for  only  one-seventh  of  a mile;  then  translate 
that  into  slope  per  mile. 

AVe  have  seen  upon  the  slopes  of  the  Snake  Elver  that  steam- 
boats successfully  run  the  Monumental  Eapids,  which  fall  at  the 
rate  of  29  feet  to  the  mile  for  a distance  of  300  feet,  and  that  the 
water  in  that  place  is  only  30  inches  deep.  The  water  in  the  Des 
Plaines,  at  the  foot  of  Treat’s  Island,  measured  on  the  line  of  4,000 
second-feet,  which  is  the  minimum  flow  under  existing  conditions, 
is  4f  feet  deep.  On  the  low  water  line  of  1883  in  this  slope  it  was 


.‘U")  iiu‘lies  deep,  or  the  same  depth  os  at  Moiiuineiital  Rapids  on  the 
Snake  River. 

This  is  tlie  place  in  tlie  Des  Plaines  River  whicli  is  spoken  of  in 
the  U.  S.  Engineers’  Report  of  J90'5  as  having  a velocity  of  2.1 
miles  per  hour.  (Report  of  1905,  p.  41.) 

It  will  be  seen  from  this  that  the  mere  fact  that  the  bottom  has 
an  acute  slope  for  700  feet  at  this  point  is  not  the  only  thing  to  be 
considered.  The  sharp  rise  in  the  bottom  one-half  mile  lower 
down,  the  great  depth  of  the  water  at  the  foot  of  this  slope,  the 
low  water  of  1883  maintaining  a depth  of  15  feet,  and  the  widen- 
ing of  the  stream  at  this  point,  incidental  to  its  being  just  below 
the  Island — all  reduce  the  velocity  so  that  at  this  point  of  its 
greatest  slope  the  velocity  of  the  current  is  not  as  great  as  at 
other  points  of  much  less  slope. 

While  the  stream  had  a velocity  of  only  2.1  miles  per  hour  at 
this  point,  it  had  a velocity  of  7 miles  at  the  Jefferson  Street 
Bridge,  just  below  Dam  No.  1,  where  the  slope  was  not  so  great, 
but  where  the  river  now  runs,  and  in  1905  ran  over  a smooth  in- 
clined plane,  which  is  part  of  the  alterations  incident  to  the  dam 
and  to  the  improvement  of  the  Sanitary  Engineers.  (See  the 
right-hand  end  of  Cooley  E’xhibit  3,  where  the  smooth  inclined  plane 
at  the  bottom  is  delineated  with  the  label  ^‘Improved  by  the  Sani- 
tary District.”)  This  is  the  point  of  the  greatest  velocity,  and 
this  great  velocity  is  produced  by  the  artificial  smooth  inclined 
plane  of  the  bottom,  and  the  artificially  smoothed  banks,  which 
does  not  represent  the  natural  flow  of  this  stream.  At  Jefferson 
Street  Bridge,  below  Dam  No.  1,  the  water  is  running  down  a 
smooth  easy  slope  three-quarters  of  a mile  long  into  the  deep 
glacial  bowl  of  Lake  Joliet.  At  the  foot  of  Treat’s  Island  it  runs 
even  more  immediately  into  a deep  glacial  bowl. 

From  Dam  No.  1 to  the  mouth  of  the  Des  Plaines  is  over  15  2-3 
miles.  In  this  distance  the  river  bottom  falls  from  level  57  below 
Chicago  datum  to  level  96,  or  39  feet  in  the  15  2-3  miles.  It  is 
repeatedly  referred  to  in  round  numbers  as  40  feet  in  sixteen 
miles — a fall  of  21  feet  to  the  mile. 

It  is  true  that  this  fall  is  mainly  developed  in  three  places,  viz., 
the  stretch  nearly  3 miles  long  just  below  Dam  No.  1,  the  stretch 


;!1H 

2i  miles  long  jnst  at  Treat’s  Island,  and  tlie  stretch  i mile  long 
just  al)ove  the  darn. 

From  Dam  No.  1 to  a point  2,000  feet  below  Brandon’s  Bridge 
is  approximately  16,000  feet,  or  3 miles.  In  these  3 miles  the  river 
bottom  falls  from  level  57  to  level  78,  or  21  feet  in  3 miles.  (In  th^ 
first  mile  of  this,  viz.,  from  Dam  No.  1 to  the  line  of  the  removed 
Adam’s  Dam,  it  falls  from  level  57  to  level  66|-  below  Chicago 
datum,  or  9|-  feet.) 

From  the  head  of  Treat’s  Island  to  Smith’s  Bridge  is  13,500 
feet,  or  a little  over  2.5  miles  (which  would  be  13,200  feet).  In 
this  distance  the  bed  of  the  river  falls,  according  to  the  profile, 
from  level  80  to  level  90 — a fall  of  10  feet.  In  the  last  one-half 
mile  above  the  mouth  of  the  river  the  river  bed  falls  from  level  92.5 
to  level  96,  or  3.5  feet. 

This  makes  a total  fall  in  the  three  extreme  slopes,  occupying  in 
all  6 miles,  of  37.5  feet,  leaving  a fall  for  the  remaining  9 2-3  miles 
of  1.5  feet. 

All  of  these  are  visually  portrayed  upon  the  profile,  Cooley  Ex- 
hibit 3,  and  are  capable  of  easy  verification,  by  applying  a foot  rale 
to  the  profile. 

The  acutest  of  these  falls  thus  measured  is  9f  feet  in  the  first  mile 
just  below  Dam  No.  1.  It  is  only  by  taking  a very  small  section  of 
the  river,  down  to  about  500  feet  long,  that  a more  acute  slope  in 
the  bottom  can  be  found,  on  the  edge  of  the  glacial  bowl,  and  that 
slope  when  found  is  amply  offset  by  a corresponding  rise  on  the 
opposite  side  of  the  glacial  bowl  in  the  bottom  a short  distance  be- 
low; and  when  the  low  water  line,  where  the  boat  would  go,  is  com- 
pared with  the  bottom,  the  fall  is  seen  to  be  much  less. 

The  results  from  the  examination  of  this  slope  at  Treat’s  Island, 
as  compared  with  the  artificial  slope  just  at  the  foot  of  Dam  No.  1, 
are  sufficient  to  demonstrate  the  accuracy  of  the  report  by  the 
Government.  They  say  on  p.  41  that  the  velocities  are  as  follows : 


319 


‘‘mkan  vki.ocity  ok  cuhrknt  in  upper  ir;r.iN()is  and  i.ovver  des 

PI.AINES  RIVER  DURING  EXTREME  HIGH  WATER. 

Mean  Velocity. 

Location — Ft.  per  sec.  Miles  per  sec. 


Kankakee  cut-off  . 

3.65 

2.5 

One-fourth  anile  below  foot  of  Treat’s 

Island  

3.15 

2.1 

One  and  three-fourths  miles  below  Bran- 

. don  Bridge  

3.33 

2.3 

Jefferson  Street  Bridge,  Joliet 

10.91 

7.4 

‘‘Tliis  table  is  designed  to  show  the  greatest  velocities  which 
occur  from  Utica  to  Joliet.  A study  of  the  table,  in  conjunc- 
tion with  the  profile,  indicates  that  from  Utica  to  the  foot  of 
Atoore’s  Island,  a distance  of  12.3  miles,  the  maximum  veloc- 
ity varies  from  2.8  to  3.6  miles  per  hour.  From  the  foot  of 
Aloore’s  Island  to  the  middle  of  BelPs  Island,  a distance  of 
2.3  miles,  the  velocity  increases  to  4.3  miles  per  hour.  From 
this  point  up  stream  the  velocity  continues  to  increase  as  we 
approach  the  Marseilles  dam,  which  is  247  miles  from  Graf- 
ton. One  mile  below  the  dam  the  velocity  was  5 miles  per 
hour.  Just  below  the  dam  it  has  been  impossible  to  compute 
the  velocity,  as  there  is  not  sufficient  data  on  hand,  but  it  was 
probably  not  less  than  7 miles  per  hour.  From  the  Alarseilles 
dam  to  Seneca,  a distance  of  4.4  miles,  the  velocity  varies  from 
3.5  to  4.1  miles,  the  greater  value  being  found  at  only  one  sec- 
tion. From  Seneca  to  Patterson  Island  (at  the  head  of  Lake 
Joliet,  a distance  of  32.7  miles,  the  maximum  velocities  vary 
from  2.1  to  3.1  miles  per  hour.  There  are  two  exceptions  to 
this,  viz.,  at  the  mouth  of  the  I)es  Plaines  Eiver  and  at  Treat’s 
Island,  where  it  is  impossilJe  to  compute  the  velocity,  as  there 
are  not  sufficient  data  on  hand.  It  would  probably  not  exceed 
4 miles  per  hour,  at  either  place,  for  a distance  of  about  one- 
half  mile.  Proceeding  up-stream  from  Lake  Joliet  the  velocity 
increases  up  to  I)am  No.  1 at  Joliet.  At  the  Jefferson  Street 
Bridge  the  computed  velocity  is  7.4  miles  per  hour  for  the  flood 
of  1904. 

^^From  the  preceding  investigation  it  has  been  dJhcided  that 
the  velocities,  which  obtain  during  extreme  high  water,  are 
prohibitive  only  below  the  Marseilles  and  Joliet  dams.  Under 
the  adopted  project  a canal  about  3 miles  long  has  been  pro- 
vided along  each  of  these  sections.  The  velocity  from  the 
Marseilles  dam  to  Seneca,  viz,.  3.5  to  4.1  miles  per  hour,  is 
obstructive  to  navigation,  but  not  prohibitive,  and  as  these 
floods  occur  only  at  rare  intervals  and  are  of  short  duration, 
it  is  not  considered  necessary  to  leave  the  river  bed  at  this 
section.  The  same  remarks  apply  to  the  section  just  below  the 
proposed  canal  at  Marseilles,  and  to  the  short  sections  at  the 
mouth  of  the  Kankakee  Eiver  and  at  Treat’s  Island.” 


:V2() 

Tliere  is  room  for  iiiucli  misap])reliension  in  the  treatment  of  the 
subject  of  slopes  per  mile. 

Tf  we  take  tlie  case  of  a coblhe  stone  lying  in  the  river  with  a 
diameter  (i  inches,  and  so  filled  up  by  sand  behind  it  that  the  river 
bed  for  a yard  or  so  back  of  it  is  level,  we  will  have  a fall  in  the 
bottom  of  the  river  in  front  of  the  stone,  or  the  diameter  of  the 
cobble  stone,  6 inches — in  the  length  of  that  diameter,  6 inches. 
At  this  particular  point,  the  bottom  would  fall  6 inches  downward 
in  6 inches  forward  of  river  bed,  or  at  the  rate  of  one  mile  down- 
ward for  one  mile  forward.  This  would  mean  a fall  at  the  rate  of 
5,280  feet  per  mile. 

Such  a basis  of  computation  is  absurd,  and  this  caution  should 
be  borne  in  mind  in  considering  the  phrases  of  the  witnesses,  who 
spoke  of  a fall  at  the  great  rate  per  mile  for  a short  distance,  with- 
out specifying  lion)  short. 

Thus  Mr.  Woerman  testified  for  the  defense  with  reference  to 
slopes  as  follows : 

‘^The  fall  of  the  river  from  Lockport  to  Joliet  is  about  38 
feet  in  four  and  a half  miles.  From  the  foot  of  Dam  No.  1 at 
Joliet  to  the  head  of  Treat’s  Island,  or  to  the  head  of  Lake 
Joliet,  there  is  a fall  of  about  21  feet  in  three  and  a half  miles. 
Then  comes  the  pool  known  as  Lake  Joliet  about  five  miles 
long,  with  practically  no  fall.  Then  the  rapids  at  Treat’s 
Island,  where  there  is  a fall  of  about  feet  in  one  mile.  Then 
a pool  about  one  mile  long  where  there  is  practically  no  fall. 
Then  the  rapids  at  Smith’s  Bridge,  where  there  is  a fall  of,  I 
think,  2.7  feet  in  one  mile.  Then  the  pool  which  is  sometimes 
called  Lake  Du  Page,  where  there  is  a fall  of  2 feet  in  about 
31  miles.  Then  the  rapids  at  the  mouth,  where  there  is  a fall 
of  about  31  feet  in  one-half  mile. 

‘‘The  bed  of  the  river  from  Lockport  to  Joliet  on  down  to 
Treat’s  Island  is — on  down  to  Lake  Joliet — is  rock  covered 
with  numerous  bowlders,  islands  in  places  covered  with  more 
or  less  timber.  At  Lake  Joliet  that  bottom  is  soft.  At  Treat’s 
Island  the  bottom  consists  of — it  is  a hard  bottom,  covered 
with  numerous  boulders  of  all  sizes — also  near  the  mouth  the 
bottom  is  covered  with  bowlders,  and  the  depth  of  the  water 
is  quite  variable.  In  going  down  over  the  river  in  a skitf  in 
1889  we  got  aground  at  a number  of  places  and  two  of  us  had 
to  get  out  of  the  skiff  and  drag  the  skiff  over  the  gravel  bars. 
We  also  found  great  difficulty  in  dodging  the  bowlders  and 
struck  them  a number  of  times.  In  the  vicinity  of  Brandon’s 
Boad,  in  the  vicinity  of  Treat’s  Island,  is  where  we  struck 


ilu)S('  bowlders.  At  ilie  inoiilh  we  almost  ('apsized,  in  those 
ra[)ids,  tlie  waves  were  so  liigli.  The  i-iver  is  tor-tuous  and  tlui 
(diannel  (piite  nari’ow  in  ])laees.  The  nai-rowcist  place;  was 
near  floilet,  where,  on  one  side  of  an  island  wliiedi  was  siibse;- 
(|uently  excavated  by  tlie  Sanitary  District  tliere  was  bO  feet 
on  one  side  and  40  on  the  other.  Other  places  tliere  was 
widths  of  80,  90  and  100  feet. 

“I  liave  completed  my  general  description  of  that  part  of  the 
river.  I have  spoken  of  certain  slopes  being  at  so  much  ]:>er 
mile.  I have  not  included  in  those  statements  the  maximum 
slopes  on  that  river.  There  is  at  Treat’s  Island,  for  example, 
nine  feet  and  a half  fall  in  the  length  of  the  island,  hut  you 
take  certain  portions,  the  slope  is  very  much  steeper  tlian 
that. 

‘‘Well,  in  the  main  channel  near  the  head  there  is  a slojie  of 
17  feet  to  the  mile.  Near  the  foot  there  is  a slope  of  18  feet 
to  the  mile.  Over  in  the  right-hand  channel  there  is  a slope  in 
one  place  of  50  feet  to  the  mile — perhaps  for  a distance  of 
500  feet  or  so,  or  a still  shorter  distance  you  could  iind  still 
steeper  places. 

“Well,  at  Smith’s  Bridge,  where  I gave  a fall  of  2.7  feet  in 
a mile,  if  you  take  the  steepest  ])ortion  i^rohably  it  would  he 
10  or  12  feet  to  the  mile  for  a short  distance  near  the  bridge; 
perhaps  for  400  or  500  feet.  The  same  way  at  the  mouth, 
where  I gave  the  fall  as  about  3 feet  and  a half  mile.  The 
fall  at  one  point  was  steeper  than  anything  T found  at  Treat’s 
Island — that  is,  steeper  than  I found  in  the  main  channel  at 
Treat’s  Island,  I should  judge  20  feet  to  the  mile. 

“I  do  not  remember  the  exact  figures  for  the  mouth  of  the 
river;  approximately  20  feet  to  the  mile — that  would  he  for 
perhaps  800  or  400  feet.”  (Ahst.,  pp.  1444-5-0.) 

It  will  he  observed  that  Mr.  AVoerman  in  his  slopes  states  that 
the  fall  of  the  river  from  Lock])ort  to  Joliet  is  about  88  feet  in  41 
miles.  This  is  all  north  of  Dam  No.  1,  and  this  fall  has  all  been 
taken  out  by  a lock  erected  by  the  Sanitary  District  in  the  con- 
trolling works  at  Lockport.  A boat  starting  from  Lake  Michigan 
comes  down  to  Dam  No.  1 through  that  Sanitary  Lock. 

Again  it  will  be  observed  that  Mr.  Woerman  says  of  the  river 
at  Treat’s  Island : 

“AVell,  in  the  main  channel  near  the  head  there  is  a slope 
of  17  feet  to  the  mile;  near  the  foot  there  is  a slope  of  18  feet 
to  the  mile.  Over  in  the  right-hand  channel  there  is  a slope  in 
one  place  of  50  feet  to  the  mile,  perhaps  for  a distance  of  500 
feet  or  so;  or  in  a still  shorter  distance  you  can  find  still 
steeper  places.”  (Abst.,  ]).  1445.) 


It  will  1)0  r(MHoin})ero(l  that  Air.  (/V)()ley  expressly  testified,  and 
his  Profile  Pxhihit  2 exi)ressly  sliows  on  the  faee  that  the  J^rofile 
is  eai*ried  down  the  left-hand  eliaimel. 

There  lias  lieen  a deteriniiied  effort  by  Witness  Woerman  to 
introduce  figures  about  tlie  right-liand  channel  and  impose  the 
difficulties  of  that  channel  as  insuperal)le  barriers  to  navigation; 
but  when  it  is  remembered  that  tlie  left-liand  cliannel  is  the  one 
that  he  himself  quotes  as  tlie  ‘'main  channel”  and  this  main  chan- 
nel is  the  one  on  which  the  Cooley  profile  is  laid  out — it  is  plain 
that  the  introduction  of  these  figures  concerning  the  right-hand 
channel  simply  has  a tendency  to  mislead  the  Court. 

This  witness,  J.  Woerman,  testified  on  the  stand  that  he 
wrote  the  words  which  we  have  quoted  above  from  pages  41  and  42 
of  the  Report  of  1905.  He  was  an  engineer  in  the  employ  of  that 
Board  of  Engineers,  and  his  name  is  signed  to  this  report  on 
page  68. 

He  himself  in  laying  out  the  Waterway  Survey  of  1904  selected 
the  east  or  left-hand  side  as  the  proper  side.  On  page  67  of  that 
report,  where  he  gave  the  details  of  the  canal  which  he  suggested 
to  be  made  around  the  slope  in  Joliet,  he  said  the  following: 

Canal  at  Joliet  to  Foot  of  Treat^s  Island. — This  pool  is 
created  by  Dam  No.  2,  which  is  located  at  the  foot  of  Treat’s 
Island,  at  station  1473.9.  This  level  extends  from  Lock  No. 
3,  at  station  1507,  to  Lock  No.  4,  at  station  1474,  a distance 
of  6.2  miles.  The  proposed  low-water  surface  for  this  section 
is  at  elevation  515  feet  Memphis  datum.  Practically  all  of  this 
level  is  located  in  Lake  Joliet,  which  is  a portion  of  the  Des 
Plaines  River,  having  a low-water  width  of  600  to  1,500  feet. 
It  is  a deep  gorge  cut  in  the  rock,  which  has  become  largely 
filled  with  mud  and  sand,  but  the  depth  of  water  along  the 
proposed  route  is  still  7 to  16  feet  below  the  low  water  of 
i 1901.  The  banks  rise  with  a steep  slope  to  a height  of  40  to 
80  feet.  The  adopted  route  passes  along  the  east  side  of 
Treat^s  Island,  as  that  channel  is  wider  than  the  other.  This 
channel  is  150  to  200  feet  wide  and  has  a fall  at  low  water  of 
9 feet  in  about  6,000  feet.  This  place  is  referred  to  in  the  sec- 
tion devoted  to  velocity  of  current.  The  bed  of  the  stream 
along  these  rapids  consists  of  large  bowlders.  Practically  no 
rock  excavation  is  necessary  in  this  level,  and  the  amount  of 
earth  excavation  is  comparatively  small.  The  amount  of  land 
damaged  by  overflow  is  also  very  small.” 


Woornuui,  ilio  assistant  to  the  (Government  I>oar(l  ot*  Engineers, 
who  were  planning  the  navigable  waterway  in  the  Des  Plaines 
lliver,  said  that  the  velocities  wliich  obtained  during  the  extreme 
high  water,  are  prohibitive  only  below  the  Marseilles  and  Joliet 
Dams. 

Woerman,  the  assistant  attorney  for  defense,  finds  the  slopes 
which  he  considers  unnavigable  throughout  the  river.  He  intro- 
duces and  testifies  to  slopes  between  Lockport  and  Joliet,  which 
are  taken  out  by  the  Sanitary  Lock,  and  to  other  slopes,  which  he 
considers  prohibitive,  in  the  right-hand  channel  of  Treat’s  Island, 
which  is  not  used. 

We  appeal  from  Woerman,  the  attorney  for  the  Defense,  to 
\Yoerman,  the  assistant  engineer  for  the  Government.  Woerman, 
the  engineer  for  the  Government,  recommended  the  east  or  left- 
hand  bank. 

Upon  the  Fox  River,  as  we  have  seen,  there  was  a fall  of  170  feet 
in  28  miles.  This  was  divided  into  8 principal  rapids,  one  of 
which,  the  Grand  Chute,  gave  a fall  of  50  feet  in  41  miles;  and  an- 
other, the  Little  Chute,  gave  a fall  of  38  feet  in  24  miles ; another. 
Cedar  Rapids,  gave  a fall  of  10  feet  in  f mile;  and  the  Grand 
Chute  gave  a fall  of  38  feet  in  4 miles. 

This  is  the  river  which  the  Supreme  Court  of  the  United  States 
held  a navigable  stream  in  its  natural  condition  in  the  Montello 
case.  (Mpntello,  20  Wallace,  430.) 

Now  we  have  seen  that  in  the  Snake  River  slopes  are  success- 
fully navigated  at  the  Texas  Rapids  of  15  feet  in  the  mile,  as  testi- 
fied by  Gray,  or  14.4  feet  in  (),(>00  feet,  as  given  by  the  Government 
Report  of  1891.  This,  Gray  said,  is  about  15  feet  in  about  a mile. 
In  its  native  condition  it  took  all  day  in  going  through  the  Texas 
Rapid,  going  over  rocks  that  are  5 feet  under  water.  At  the  Cop- 
per Creek  Falls,  the  witness  stated  there  was  a perpendicular  fall 
of  about  18  feet,  and  about  200  feet  of  fall  in  4 miles;  and  that 
there  were  quite  a number  of  falls  from  10  to  15  feet  all  the  way 
down  the  250  miles. 

At  the  Squally  Hook  Rapids  he  testified  there  was  a fall  of  from 
8 to  10  feet  in  three-quarters  of  a mile.  At  the  Umatilla  Rapids 
he  testified  that  there  was  a fall  of  17  feet  in  24  miles,  and  that 


llio  rivei-  was  very  (‘I'ooked,  and  had  about  5 feet  of  water  in  it, 
with  a (‘iiiTent  of  ll2  miles  an  liour.  The  (jovernment  Report  of 
1875  states  tliat  tliere  tlie  de})tli  of  water  obtained  after  l)lastini>- 
out  the  ro(*ks  was  (>  feet  in  low  water. 

At  the  5-mile  rapid  there  was  a fall  of  8 feet,  lie  testified,  in  a 
lengtii  of  500  feet.  The  Government  Report  of  1891  gives  it  as 
10. 5()  feet  ])er  mile. 

At  the  Fish  Flook  Rapids  the  Government  Report  gives  the  fall 
of  10  feet  ]jer  mile,  and  the  witness  stated  that  the  Fish  Hook  was 
a reef  in  the  middle  of  the  river,  v/ith  a shoal  bar,  probably  2 feet 
of  water  in  the  channel  off  to  the  left;  that  the  rapid  was  about 
miles,  and  one  engineer  made  the  fall  17  feet,  another  14  feet,  and 
another  23  feet  at  the  Pine  Tree  Rapids,  which  the  Government  Re- 
port gives  as  a total  fall  of  11.5  feet  in  5,000  feet,  or  12.14  feet  per 
mile.  The  witness  stated  that  this  was  the  wildest  place  on  the 
river,  that  there  was  about  ll  feet  fall  and  that  it  took  two  days  to 
get  through.  The  Government  Report  of  1875  states  that  this  is 
the  worst  rapid  at  low  water  of  the  river;  that  there  was  scarcely 
width  enough  for  a boat  to  pass  through. 

At  the  Monumental  Rapids,  the  river  falls  1.7  feet  in  300  feet, 
and  the  witness  stated  that  the  depth  at  low  water  was  30  inches, 
and  that  the  passage  was  very  difficult  and  dangerous. 

The  summaries  which  we  give  elsewhere  of  the  slopes,  falls  and 
velocities  in  the  Ohio,  Mississippi,  the  Missouri,  the  Cumberland 
and  the  Tennessee  also  present  instances  of  slopes  more  difficult 
than  any  of  these  in  the  Des  Plaines. 

It  is  perfectly  obvious  that  there  is  nothing  in  the  suggestion 
that  the  slopes  of  the  Des  Plaines  make  it  non-navigable,  except 
the  wish  of  the  defendant  to  have  it  so. 

(i.  THE  SINUOSITIES  OF  THE  DES  PLAINES. 

Much  has  been  said  by  Mr.  AYoermann  about  the  sinuosities  of 
the  Des  Plaines  River.  These  are  shown  in  McCullough  Exhibit 
1,  for  the  16  miles  of  river  involved  here. 

An  examination  of  the  large  map,  Cooley  Exhibit  29,  will  show 
the  entire  strip  of  the  river  involved  here,  and  about  five  times  as 
much  more  of  the  Illinois  River. 


All  oxaiuiiiatioii  of  this  map  will  show  that  mueli  greater  sinuosl- 
ties  are  (leliiieatcd  in  the  Illinois  River,  lioth  above  and  lielow  La- 
Salle, than  are  delineated  in  tlie  Des  Plaines  River. 

A glance  at  any  standard  map  of  Illinois,  for  instance  the  map 
put  ont  by  the  United  States  Government,  showing  post  routes  in 
Illinois,  will  enable  an  easy  comparison  to  be  made  of  the  Illinois 
River  thronglioiit  its  entire  course,  and  the  Mississippi,  also,  with- 
out the  entire  course  adjacent  to  Illinois  on  the  one  hand,  with  the 
Des  Plaines  River  between  Joliet  and  its  mouth  on  the  other  hand, 
and  such  an  examination  will  immediately  show  that  much  greater 
sinuosities  are  to  be  found  in  the  Illinois  and  Mississippi  than  are 
to  be  found  in  the  Des  Plaines. 

Again,  the  examination  of  the  government  survey  inajD  of  the 
Fox  and  Wisconsin  Rivers  (Abst.,  p.  1631)  will  show  that  the 
upper  Fox  exhibits  far  greater  sinuosities  throughout  its  entire 
course  than  any  to  be  found  in  the  Des  Plaines. 

The  detailed  testimony  of  Mr.  Woermann  on  the  subject  was  as 
follows : 

^‘The  worst  places  are  at  the  vicinity  of  Brandon’s  Road 
and  at  Treat’s  Island,  very  abrupt  turns.  I measured  the 
width  on  the  Government  map  in  a niimber  of  places  and  put 
the  width  in  figures  in  this  ‘Woermann  Exhibit  4.’  I could 
not  recall  exactly  what  they  were  at  various  places.  At  the 
small  island  which  formerly  existed  just  below'  Jefferson 
street  the  width  was  sixty  feet  on  one  side  and  forty  feet  on 
the  other.  That  is  the  one  I have  already  referred  to. 

‘‘The  points  where  I said  the  turns  were  very  abrupt  were 
between  these  various  islands,  in  the  vicinity  of  Brandon’s 
Road,  and  then  several  points  along  Treat’s  Island,  particu- 
larly at  the  head,  right  immediately  below  the  present  bridge, 
where  there  is  a projecting  point  on  the  left-hand  bank  extend- 
ing nearly  half  way  across  the  river,  and  then  against  the 
mouth. 

“I  have  examined  ‘McCulloagh  Exhi])it  I’  and  ‘McCullough 
Exhibit  2’  that  are  introduced  in  evidence  in  this  case.  Those 
maps  exhibit  the  sinuosities  of  the  Des  Plaines  River,  to  some 
extent,  not  fully,  on  account  of  the  fact  that  the  scale  is  too 
small  to  show  abrupt  turns. 

“Well,  a map  on  that  scale  cannot  show  all  the  small  projec- 
tions. For  instance,  a sharp  projection  just  below  the  bridge 
at  Treat’s  Island  and  some  irregularities,  small,  but  still  pro- 
jecting a considerable  distance  into  the  river,  are  shown.  Fur- 


tlierinore,  a large  number  of  islands  which  occur  in  the  river 
where  the  sharpest  bends  are,  are  not  shown  at  all/’ 

Q.  ‘‘State  whether  or  not  in  your  opinion  the  Des  Plaines 
Jiiver  from  Lockport  to  the  mouth  is  a navigable  stream,  capa- 
ble of  carrying  useful  commerce!” 

“For  several  reasons;  the  depth  is  too  shallow;  the  slopes 
are  too  great;  and  on  account  of  its  rocky  bed  and  great  num- 
ber of  boulders  and  other  obstructions,  its  narrowness  and 
crookedness.”  (Abst.,  pp.  1452-1456.) 

A reference  to  House  Document  No.  263  reporting  the  survey  by 
the  Ernst  Board  of  Government  Engineers  made  in  1904-1905  will 
show  that  when  Mr.  Woermann  was  emploved  as  «,n  assistant  by 
the  government  to  survey  this  waterway  as  a waterway,  nothing 
was  said  about  sinuosities. 

In  his  map,  “Woermann  Exhibit  4”  (Abst.,  p.  1934),  he  has 
drawn  a projecting  point  sticking  out  in  the  stream  on  the  left- 
hand  bank,  below  the  Treat’s  Island  bridge. 

The  largest  map  on  the  largest  scale  of  this  situation  is  that 
which  appears  on  Cooley  Exhibit  25,  which  is  sheet  13  of  the  Mar- 
shall planning  of  his  own  survey,  and  that  of  1883  made  and  pub- 
lished by  the  government.  Mr.  Woermann  complains  that  the 
other  maps  are  all  on  too  small  a scale  to  show  these  sinuosities, 
so  he  has  made  a map  of  his  own  “Woermann  Exhibit  4,”  on  a 
scale  of  four  inches  to  the  mile  (or  1,320  feet  to  the  inch)  in  order 
to  show  them. 

Cooley  Exhibit  25  is  on  the  scale  of  300  feet  to  the  inch — more 
than  four  times  as  large  a scale — and  this  map  shows  no  project- 
ing point,  whatever,  at  the  place  where  Mr.  Woermann  has  sketched 
a dangerous  projecting  point. 

It  will  not  do  to  say  that  the  point  was  not  there  in  1889,  but  has 
come  there  since,  for  the  change  since  1889  has  been  to  turn  in  a 
vast  amount  of  water  from  the  Sanitary  District  Channel  and 
overflow  and  obliterate  whatever  projecting  points  there  may  once 
have  been.  This  projecting  point  exists  only  on  the  "Woermann 
map,  and  in  the  IVoermann  oral  testimony. 

Again  it  will  be  observed  that  Mr.  Woermann  speaks  of  the 
large  number  of  islands  in  the  river,  and  refers  to  islands  which 
formerly  existed,  but  which  have  been  removed. 


:j27 

A rel'cM'oiico  to  (^ooloy  25  (Ahsi.,  p.  (yoob^y  Kx- 

liibit  2()  (Absl.,  p.  1952)  and  Oooloy  Exliibit  27  (A})st  p.  1952) 
sliows  all  the  islands  that  existed  in  1885  and  1889,  many  of  which 
liave  since  been  removed  by  the  Sanitary  Diistrict,  and  none  of  them 
])resent  the  difficulties  conjured  up  by  the  wishes  of  the  adverse 
witness. 

7.  THE  FORMER  DAMS  AND  THE  BRIDGES,  ACROSS  THE  DES  PLAINES, 

BARGE  NAVIGATION. 

Defendant  amassed  evidence  of  bridges  now  in  existence  cross- 
ing the  river,  not  only  between  Dam  No.  1 and  the  mouth  of  the 
river,  but  for  50  miles  above  Dam  No.  1 through  a part  of  the 
river  which  would  not  be  involved  in  its  use  at  the  point  in  ques- 
tion. A boat  going  from  Lake  Michigan  would  go  up  the  Chicago 
Eiver,  up  the  Drainage  Canal  to  Dam  No.  1.  Between  Dam  No.  1 
and  the  mouth  of  the  river  there  were  11  bridges,  a list  of  which 
appears  on  page  49  of  House  Document  263. 

The  existence  of  these  liridges  under  Illinois  law  is  not  consist- 
ent with  navigability.  The'heavy  freight  business  of  the  rivers  in 
the  west  is  mainly  done  by  barge  navigation. 

The  witness  Woermann  stated  that  he  was  not  acquainted  with 
that  fact  (Abst.,  ]).  1485),  Imt  Captain  Marshall  in  his  report  said 
this : 

‘^Granting  the  necessity  for  a channel  way  of  large  capacit}^ 
across  the  Chicago  Divide,  a narrow  and  deep  channel  with  a 
more  or  less  rapid  current  is  not  of  the  character  demanded  by 
western  river  navigation.  The  heavy  business  of  these  rivers, 
especially  of  the  Mississippi  and  Ohio,  is  transacted  by  barges 
and  towboats  or  by  n'ide  fiat-bottom  steamboats  of  compara- 
tively light  draft/ ^ 

THE  defendant’s  ACCUMUIATED  EVIDENCE  OF  NUMEROUS  DAMS, 
BRIDGES,  AND  FENCES  CROSSING  THE  RIVER  IN  BETWEEN  I.OCKPORT 
AND  THE  CONFLUENCF  OF  THE  KANKAKEE. 

Two  of  the  dams  were  built  by  the  State  in  aid  of  canal  naviga- 
tion; the  others  were  Imilt  ])y  i)rivate  owners,  without  any  permit 
or  authorization  by  the  State. 

As  to  the  fences,  some  of  them  merely  extended  partially  into 
the  river,  some  of  them  went  across  the  river  with  a swing  gate 


328 


Tor  (he  passage  of  boats,  and  some  wire  fences  went  across  the 
river  without  any  gate. 

These  latt(‘r  were  usual ly  washed  out  every  spring. 

W'ithoiit  elaborating  the  evidence  thereon^  it  is  sufficient  to  say 
that  they  are  all  of  them  within  the  princii)le  laid  down  by  this 
Court  in  Clark  v.  Lake,  1 Scam.,  229;  and  in  Canal  Trustees  v. 
Haven,  11  111.,  557-8:  they  were  without  authority;  they  were  un- 
authoi'ized  erections  erected  by  the  owners  at  their  peril.  They 
conferred  no  riglits  and  constitute  no  defense.  As  the  Court  said 
in  11  111.,  558: 

‘‘The  a])pellees,  having  a right  to  only  one-half  of  the  water, 
must  use  it  as  it  is  accustomed  to  flow  down  the  channel.  The 
erection  of  the  dam  across  the  stream,  by  means  of  which  the 
head  of  watei*  was  increased,  and  the  value  of  the  site  and  im- 
provements enhanced,  was  unaiitliorized.  The  assessment  of 
damages  for  the  deprivation  of  the  water,  must,  therefore,  be 
made  with  reference  to  the  actual  value  of  the  use  of  one-half 
of  the  water  uatiirallij  flowdng  along  the  channel,  without  tak- 
ing into  consideration  any  artificial  obstructions  extending 
across  the  stream.  If  there  had  been  no  diversion  of  the  water, 
the  appellees  could  not  maintain  their  dam  across  the  river.” 

In  Clark  v.  Lake,  1 Scam.,  229,  the  action  was  for  obstructions 
of  navigation  in  the  Sangamon  River  by  means  of  a mill  there, 
and  the  defendant  was  permitted  to  prove  the  existence  of  other 
dams.  The  court  said: 

“This  Court  can  not  conceive  what  other  use  could  have 
been  made  of  this  testimony,  unless  it  was  to  urge  to  the  jury 
that  if  the  plaintiff  could  have  passed  the  defendant’s  dam, 
he  would  not  have  been  benefited  by  it,  as  he  inevitably  would 
have  been  stopped  by  the  dam  lower  down  the  river.  This 
mode  of  reasoning  if  adopted  was  not  more  unsound  in  morals 
than  in  law.” 

This  court  applied  the  same  rule  in  West  Chicago  St.  Railroad 
Co.  V.  The  People,  21-1  111.,  1.  There  the  defendant  resisted  the 
taking  out  of  its  tunnel  on  the  ground  that  there  were  other  tun- 
nels also,  which  the  court  held  no  excuse. 

8.  THE  RELATIOX  OF  THE  DES  PEAIXES  TO  THE  CONTTNENTAE  VvWTER- 
WAY.  COOLEY  EXHIBIT  37 PROFILE  OF  THE  CONTINENTAL  W^ATERWAY. 

This  is  the  profile  of  the  Continental  Waterway.  It  is  intro- 
duced at  page  2286  of  the  certificate  of  evidence  and  set  out  in  the 


:j29 

Atins  at  i)ago  .‘)97()r^.  It  shows  a (‘ontimioiis  lino  of  waterway  from 
the  Giiir  ol*  Mexioo  ii[)  tlie  Mississippi  to  tlie  Illinois,  up  the  tllinois 
to  and  inoliiding’  tlie  Des  Jdaines,  to  the  Drainage  Canal ; up  the 
Dra  inage  Canal  to  tlie  Chicago  liiver;  througli  the  Chicago  River 
to  the  lakes;  througli  the  lakes  to  the  St.  Lawrence,  and  through  the 
St.  Lawrence  to  the  Atlantic. 

It  shows  the  low  water  of  Lake  Michigan  (Chicago  City  datum, 
low  water  mark  of  1847),  as  being  apparently  575  feet  above  the 
sea  level  at  the  Gulf  of  Mexico  and  correspondingly  above  sea 
level  at  the  Gulf  of  St.  Lawrence  (it  is  in  fact  578.56  feet;  see 
Cooley  Exhibit  30) — the  water  of  the  Great  Lakes  now  flowing 
both  ways  to  the  sea  by  gravity. 

At  the  site  of  the  Lachine  Rapids  above  Montreal,  in  a distance 
of  12  miles  the  St.  Lawrence  River  has  a slope  and  fall  of  85  feet, 
while  the  Des  Plaines  is  shown  as  having  in  16  miles  a fall  of  40 
feet. 

There  would  be  a fall  of  38>1  feet  in  15.6  miles,  or  in  round 
numbers  24  feet  to  the  mile  as  an  average.” 

(Evidence  of  Cooley,  Abst.,  p.  818.) 

This  exhibit  the  C^ourt  ruled  out  on  the  grounds  there  stated. 
(Abst.,  ]).  1188.) 

This  was  error. 

The  profile  of  the  Continental  AVaterway  is  a public  document 
made  by  Mr.  Cooley  under  the  direction  of  the  Sanitary  District  of 
Chicago,  and  is  labeled  ‘‘Sanitary  District  of  Chicago.  Profile  of 
Continental  Waterway.  Compiled  from!  Sanitary  District  and 
U.  S.  Government  Records.  Chicago,  June,  1901.  Copy  of  Profile 
made  under  direction  of  Lyman  E.  Cooley.” 

Accompanying  the  ])rofile  of  the  Continental  ACaterway  are  two 
maps  and  profiles  of  the  St.  Lawrence,  faken  from  House  Docu- 
ment 192,  54tli  Congress,  Second  Session,  Rci)ort  of  Deep  AAhiter- 
ways  Commission,  presented  at  Abst.,  ]).  1185  and  set  out  in  Abst., 
p.  1933.  These  give  the  detail  figures  and  gra])hic  representation, 
both  of  the  Lachine  Ra])ids  of  the  St.  Lawrence  and  also  of  the 
Coi'nwall  and  St.  Francis  Rapids  and  the  other  slopes  of  the  St. 
Lawrence  River. 

If  documentary  profiles  of  other  streams  and  detail  figures  as 


:^‘U) 

to  tlie  siii'face  of  other  streams,  showing  tlieir  slopes  and  deptlis  as 
standai'ds  of  comparison,  are  to  he  considered;  or  if  the  testimony 
of  witnesses  who  come  from  otlier  rivers  and  make  express  opin- 
ions based  upon  comparisons  with  other  streams,  are  to  be  con- 
sidered, then  these  Government  surveys  of  these  streams  were 
competent.  Details  of  difference  will  be  found  everywhere,  on  the 
general  principle  that  no  two  peas  are  alike. 

It  must  be  observed  that  in  this  instance  the  evidence  is  directed 
to  the  issue:  Is  the  stream  navigahlef  Does  it  possess  the  quali- 
fications of  navigahilitgf 

As  to  the  issue,  the  evidence  of  experts,  and  the  evidence  of 
measurement,  and  the  evidence  of  the  uses  of  boats,  consist  as  a 
whole  of  the  application  to  this  disputed  stream  of  standards  and 
conditions  found  in  other  streams  of  known  navigability. 

Mr.  Theodore  E.  Burton,  Chairman  of  the  River  and  Harbor 
Committee  of  Congress  for  the  last  eleven  years.  Chairman  of  the 
Inland  Waterways  Commission  and  Chairman  of  the  Committee 
on  Waters  of  the  National  Conservation  Commission,  had  already 
testified  in  the  case  that  the  St.  Lawrence  was  navigable  down 
stream  through  these  rapids ; and  when  asked  whether  navigation 
could  be  carried  on  over  a slope  of  more  than  four  feet  to  the  mile, 
had  instanced  this  slope  as  more  than  that,  over  which  navigation 
was  carried  on,  and  added : 

^‘In  some  portions  of  the  Tennessee  between  Chattanooga 
and  Riverton  it  must  be  more  than  four  feet  at  different  stages 
of  water.” 

And  when  asked,  on  cross-examination  (interrogatory  71st),  ‘Ms 
commerce  carried  on  there  up-stream?”  answered: 

“To  no  very  great  extent  up-stream.  In  the  St.  Lawrence 
they  go  down  through  the  open  river  with  some  boats,  and  go 
up  through  a canal.” 

The  legal  contention  implied  in  the  cross-interrogatory  that  nav- 
igation must  be  practiced  up  stream  as  well  as  down  in  order  to 
make  it  navigable,  is  strictly  contrary  both  to  reason  and  to  au- 
thority. 

“A  river  by  which  the  products  of  the  country  can  be  trans- 
ported to  the  sea  is  a public  benefit  intrusted  to  the  king  as 
pater  patriae  for  the  behalf  of  his  subjects  in  general,  which 
can  neither  he  given  away  nor  abridged  by  him,  and  that  this 


transportation  is  tlie  chiel*  primary  nso  of  tlio  rivor,  and  it  in- 
compatible with  fislieries  along  its  (‘.oast  will  prevail  over 
tliem.” 

(Irant  v.  Gordon^  Mor.  Die.  12,  822. 

cited  with  approval  by  the  High  Court  of  Appeals  in  L.  R.  2 App. 
Cas.,  872. 

Nor  is  it  necessary  that  the  stream  shall  be  capable  of  naviga- 
tion against  its  current,  nor  that  it  shall  be  navigable  at  all  seasons 
of  the  year,  it  being  sufficient  that  it  becomes  navigable  periodically 
from  natural  causes. 

1 Parnham,  Waters,  Sec.  25. 

Angell  on  Highways,  45. 

Sigler  v.  The  State,  7 Baxter  (Tenn.),  493  (1874.  Big 
Creek.) 

The  evidence  was  in  this  condition.  Mr.  Burton  had  been  chal- 
lenged by  the  defense  to  tell  if  he  knew  of  a river  where  the  naviga- 
tion was  carried  on  over  the  slopes  of  more  than  four  feet  to  the 
mile.  He  replied  by  naming  the  St.  Lawrence,  the  Tennessee,  and 
referring  to  a number  of  European  Rivers,  and  had  stated  of  the 
St.  Lawrence,  ^Ht  must  be  more  than  that;  I am  not  positive,  how- 
ever, as  to  the  figures.’’ 

This  was  what  was  brought  out  by  the  question,  ^^Do  you  know, 
Mr.  Burton,  any  river  where  navigation  is  actually  carried  on 
where  the  slope  is  more  than  four  feet  to  the  mile.  ” 

We  proved  the  fact  in  reply  by  Mr.  Burton,  and  then  we  supple- 
ment that  by  the  proof  of  the  profile  of  the  St.  Lawrence  and  the 
profile  of  the  International  Waterway,  that  this  slope  is  in  fact 
more  than  that,  laid  down  by  counsel  for  the  defense  in  their  chal- 
lenge. Under  the  circumstances,  the  exclusion  was  clearly  error. 

Testimony  of  Old  Settlers  and  Neighbors  as  to  the  River. 

As  we  have  seen,  the  canal  paralleled  the  river  and  superseded 
it  in  1848;  and  the  two  dams,  — one  at  Joliet,  and  the  other  at  Mar- 
seilles, blocked  any  throngh  navigation  of  the  rivei*  from  1841,  on- 
wards. 

It  followed  that  a generation  of  men  has  grown  up  and  grown 


old,  wlio  liave  nevei*  soon  a ho;it  in  tlii-on«li  navigation  upon  the 
i-ivor.  Tliis  same  goncn-ation  is  one  wliioli  lias  witnessed  tlie  great 
development  of  steamboat  navigation  and  the  inei-ease  in  the  size 
of*  the  boats  ii])  to  about  1877, — wlien  the  maximiim  was  passed, 
and  the  towing  fleet  of  a multitude  of  small  liarges  towed  by  a 
single  small,  but  jiowei'fnl  towirg  vessel  took  tlie  ])lace  of  the 
large  steamer.  Still  later,  the  motor  freight  launeh  has  come  in, 
and  is  restoring  sliallow  draft  navigation. 

Bnt  tlie  generation  of  men  wlio  liave  seen  the  river  blocked  by 
tlie  dams  and  su])erseded  hy  the  canal  have  become  accustomed  to 
large  lioats  and  tliey  are  not  familiar  with  the  freight  launch. 

Accordingly  it  has  not  l)een  difficult  for  the  defendant  to  as- 
semble some  twenty  odd  witnesses,  who  testified  in  general  terms 
that  they  have  lived  near  the  river  for  more  than  fifty  years  and" 
have  never  seen  a boat  engaged  in  commerce  upon  it.  Some  of 
them  add  that  there  never  was  and  never  will  be  a boat  in  com- 
merce upon  it,  and  some  of  them  say  that  there  is  not  water  enough 
in  the  river  for  commerce,  and  proceed  to  give  their  testimony  as 
to  how  much  water  there  was  actually  in  the  river,  and  how  much 
they  think  there  ouglit  to  be  in  the  river  to  make  it  a navigable 
stream. 

These  witnesses  say  that  there  should  be  a uniform  stream  of 
from  four  to  seven  feet  in  depth  to  be  a navigable  stream.  It  turns 
out  at  once  that  none  of  them  were  ever  engaged  in  the  business 
of  navigation,  that  they  know"  nothing  of  the  growth  of  the  variable 
and  progressive  art  of  navigation,  that  they  have  formed  their 
estimates  on  the  fact  that  the  canal  affords  a stream  of  water  from 
four  and  a half  to  six  feet  deep,  which  they  regard  as  the  minimum, 
and  that  some  of  them  have  traveled  upon  the  lower  Mississippi 
and  seen  the  big  boats  that  were  there. 

On  the  other  hand,  it  has  been  possible  for  the  State  to  find  a 
few  old  men  still  living,  who  personally  remember  the  navigation 
which  prevailed  on  the  l)es  Plaines  before  the  canal  was  opened. 
For  instance,  Francis  Belz  describes  Mackinaw  boats,  which  he 
saw  on  the  Des  Plaines  Biver;  AYilliam  Found  describes  boats  used 
in  the  fur  trade  by  the  trappers,  with  cabins  upon  them;  Mr.  Clay 
refers  to  hundreds  of  tra])pers  upon  the  river,  with  their  boats. 


lie  was  So  years  old  iii  l^'ebrnarx , IbOS.  (j|(m)|'o(‘  \V.  K(5(m1  saw  a 
boat  loaded  willi  boiiseliold  ^oods  and  })rovisions  and  a family  ^o 
down  the  i-ivei*  fi'oni  Wisconsin,  bound  Foi*  New  ()rl(‘ans,  tin;  peoph* 
being*  cn  route  for  Oalifornia.  Uriali  Bowers  saw  two  large  ])oats 
come  down  the  river  in  1849.  The  witness  Nlirhard  from  Kansas 
testified  to  boats  in  use  u])oii  the  river  prior  to  the  oi)ening  of  the 
canal;  and  many  of  tliese  witnesses  testified  that  it  was  the  ccmi- 
nion  and  general  reputation  at  the  time  of  such  use  that  tlie  river 
was  a navigable  stream. 

AVe  liave  assembled  the  evidence  of  several  of  these  witnesses  in 
brief  and  summary  fashion. 

Many  inferences  can  be  drawn  from  the  evidence  of -ea-eh  of  tlie 
witnesses,  which  it  would  take  a practical  reprinting  of  their  entire 
testimony  to  point  out  in  detail. 

The  thing  which  perhaps  made  the  great  impression  upon  the 
trial  court  out  of  the  testimony  of  these  witnesses  was  the  state- 
meut  of  several  that  in  low  water  they  could  walk  across  the  Des 
Plaines  dry  shod  by  jumping  from  stone  to  stone. 

All  but  two  of  these  witnesses  located  their  ]K)ints  of  passage 
below  Dam  No.  1 and  above  the  mouth  of  the  Du  Page  Eiver. 

Dam  No.  1 accounts  for  the  whole  of  this.  Dam  No.  1 was  in- 
tended to  be  a water-tight  dam.  Immediately  at  its  right  hand 
above  it  was  a guard  lock  ond  feeder,  which  fed  the  water  of  the 
Des  Plaines  River  into  the  canal.  In  the  summer  months,  in  low 
water,  the  entire  water  of  the  Des  Plaines  River  was  turned  into 
the  canal,  making  a stream  of  water  in  the  canal  (10  feet  wide  at 
the  surface  and  from  4.]  to  (1  feet  deep. 

Mr.  Cooley  for  the  plaintiff,  and  Mr.  Klwood  for  the  defense 
l)oth  state  that  the  entire  water  of  the  Des  Plaines  River  luas 
turned  into  the  canal  at  this  point  during  the  periocts  of  low  water, 
and  that  it  was  only  when  the  Des  Plaines  River  had  enough  sur- 
plus water  after  filling  the  canal  (10  feet  wide  and  (1  feet  deep  to 
have  some  left  running  over  the  toj)  of  the  dam,  that  there  was 
any  water  in  that  portion  of  the  river  below  the  dam. 

That  the  entire  water  of  the  river  was  turned  into  the  canal, 
necessarily  leaving  a ])lace  l)elow  for  people  to  cross  ^Mry  shod,” 


:;:u 

is  corrohoratod  by  tlio  rollowiri^’  statement  by  tlie  court  in  Canal 
'Trustees  v.  Haven,  5 (lilni.,  at  p.  554: 

^^On  tlie  2()tli  of  April,  1848,  the  defendants  (Canal  Trus- 
tees) diverted,  or  caused  to  be  diverted  into  the  Canal  for 
the  use  of  said  Canal  from  the  natural  channel  of  the  Eiver, 
the  tuliole  or  principal  part  of  the  waters  of  said  River,  by 
turning  the  same  from  the  basin  made  in  said  River  by 
means  of  the  dam  on  section  nine,  being  a Canal  section, 
and  about  half  a mile  above  the  dam  of  said  plaintiffs,  so 
that  the  plaintiffs  are  wholly  deprived  of  the  use  of  the  water 
at  their  said  mills,  and  have  not  since  been  able  to  run  their 
machinery.  ’ ’ 

When  this  was  done,  by  means  of  this  dam,  of  course  one  coidd 
cross  dry  shod  below  the  dam. 

Yet  the  trial  court  apparently  made  this  the  controlling  fact  as 
to  the  depth  of  the  stream. 

Twelve  miles  below,  the  canal  crosses  the  Du  Page  River.  The 
waters  of  the  Du  Page  are  here  absorbed  into  the  canal  at  the  in- 
tersecting basin,  and  from  the  common  flood  some  of  the  water  re- 
turns by  way  of  the  Du  Page  River  to  the  Des  Plaines,  about  four 
miles  above  the  site  of  the  defendant’s  proposed  dam. 

Two  of  the  witnesses  say  that  they  crossed  in  this  manner  up  at 
Daggett’s  Dam  at  Lockport. 

As  to  this  part  of  the  Des  Plaines  River,  no  question  need  now 
arise,  because  the  Sanitary  District  channel  conveys  a stream  of 
water  200  feet  wide  and  22  feet  deep  directly  through  this  region, 
and  this  is  by  law  a navigable  stream. 

But  substantially,  the  same  conditions  in  fact  exist  at  the  Dag- 
gett dam. 

The  Des  Plaines  River  there  spread  out  into  a wide  body,  em- 
bracing one  very  large  island  and  two  smaller  islands,  and  this 
Daggett  Dam  extended  originally  across  one  of  the  channels,  and 
then  another,  and  finally  crossed  them  all  and  turned  the  water  into 
the  narrowest  channel  of  the  river,  upon  which  the  mill  was  located, 
and  impounded  it  there  for  use  in  the  mill,  leaving  the  other  chan- 
nel substantially  bare. 

A mile  above  Daggett’s  Mill  stood  the  old  original  Norton  ]\[ill. 


wIkm'c'  iluM'c'  \v('r(‘  more'  islaiids,  and  \vli(‘i-e  lli(‘  l)(is  Idain(*s  dividcMl 
into  sevc'ral  ('lianiiels. 

About  miles  fui'tlier  u))  stream,  at  Summit,  tlie 

eaual  was  ted  From  the  Des  Platiiies  by  a short  feeder,  wbieh  itself 
took  all  of  the  water  out  of  the  Des  Plaines  iu  periods  of  low  water. 

From  1848  to  1871  the  eaual  wais  supplied  with  wmter  iu  the  fol- 
lowing- manner : 

At  Bridgeport  a lock  connected  the  canal  -with  the  Chicago  River, 
the  canal  being  several  feet  higher  than  the  river.  In  order  to  get 
water  from  the  Chicago  River  into  the  canal  it  was  hoisted  by 
pumps  operating  ^Dift-wheels”  into  the  Bridgeport  lock,  and 
locked  over  into  the  canal. 

These  pumps  were  built  in  1848  and  at  first  were  operated  only 
in  periods  of  low  water.  The  canal  ran  substantially  level  from 
this  point  to  Lockport;  there  was  not  enough  inclination  to  give  a 
current  of  half  a mile  an  hour,  and  the  level  was  known  as  the 
^‘Summit  Level.” 

Near  the  town  of  Summit  a short  feeder  connected  the  river  with 
the  canal  and  fed  the  water  of  the  river  into  it.  Most  of  the  time 
the  Des  Plaines  River  supplied  the  whole  of  this  water  for  this 
upper  level.  The  water  poured  out  from  the  river  via  the  Summit 
feeder  into  the  Summit  level  of  the  canal  and  ran  both  ways,  until 
the  level  was  full,  and  then  from  the  full  level  flowed  by  an  im- 
perceptible current  southwest  toward  Lock})ort. 

The  “lift  wheels”  and  })umps  at  Bridge})ort  sufficed  to  keep  the 
lock  full,  by  which  boats  were  transship])ed  from  the  river  to  the 
canal  and  from  the  canal  to  th.e  river,  and  to  su})plement  the^Des 
Plaines  in  feeding  the  Summit  level. 

Substantially  all  of  the  water  of  the  upper  Des  Plaines  was 
turned  into  the  canal  at  the  Summit  feeder,  leaving  much  of  the 
bed  bare  in  low  water  in  summer. 

Part  of  it  was  turned  from  the  canal  and  feeder  at  the  Norton 
Mill;  the  tail  water  of  the  Norton  Mill  emptying  back  from  the 
canal, — where  it  was  artificiaJly  raised  above  the  basins  in  Lock 
No.  1, — into  the  rivei*. 


The  Cnliiinot  fecMler  ('iiteied  llio  (-anal  fVoiii  tlie  bed  of  the  old 
Sa^'aiiaskoo  Swaiiip,  soinetijiios  (‘ailed  the 

The  I)es  Plaines  and  tlie  Canal, — with  hotli  the  Des  Plaines  water 
and  the  (dihunet  feeder  water, — again  united  in  tlie  upper  basin 
above  Dam  No.  1 in  doliet;  and  lieie  again  the  combined  fiood  of 
the  remnants  of  the  Des  Plaines  Hiver  with  the  tail  water  of  the 
Noi-ton  mill  and  the  I.  & M.  Canal,  reinforced  by  the  Calumet 
feeder,  are  all  im])ounded  in  one  basin,  and  from  this  basin  turned 
through  the  guard  lock  into  tlie  canal.  (The  canal  was  further 
reinforced  below  by  the  Du  Page  feeder,  the  Kankakee  feeder  and 
the  Fox  River  feeder.) 

Tlie  two  ])laces  where  the  dry-shod  crossing  is  said  to  have  been 
etfected  in  the  ])eriod  ])efore  tlie  Dee])  Cut  water  was  let  in,  in 
1871,  were — (1)  below  the  Dam  No.  1,  vdiere  the  water  was  all 
turned  into  tlie  canal,  and  (2)  below  the  Summit  feeder  and  Norton 
mill,  and  in  the  vicinity  of  the  Daggett  Dam. 

All  of  tlie  testimony  of  the  several  witnesses  about  jumping  from 
boulder  to  boulder  and  going  across  dry-shod  in  low  water  relates 
to  places  vdieie  the  rvater  has  been  diverted  by  one  of  these  means. 

USE  OF  STKEAM. 

Mackinaw  Boats,  Description  of — 

“I  have  seen  Mackinaw  boats  on  the  Des  Plaines  River.  They 
were  a kind  of  a flat-bottom  boat,  and  drew  about  a foot  or  a little 
over  a foot  of  water.  They  were  fifteen  to  thirty  feet  long,  per- 
haps longer;  six  to  seven  feet  wide.  They  were  loaded  with  pas- 
sengers and  loads.”  (Deposition  of  F.  Belz,  Abst.,  pp.  440,  441.) 

live  in  Bradford,  Stark  County,  Illinois.  ! I will  be 
eighty-four  years  old  the  2d  of  March,  1908.  I was  born 
March  2,  1824,  in  Clark  County,  Indiana,  near  Terre  Haute. 
I came  to  Illinois  in  1829,  to  what  was  called  Reed’s  Grove,  in 
Will  County.”  (Deposition  of  George  W.  Reed,  Abst.,  p. 
155.) 

”It  was  in  1832,  in  October  or  November.  IVe  built  a cabin 
there,  about  four  rods  from  where  the  old  National  Hotel 
stands  now.  Mr.  George  H.  IVoodruff,  one  of  our  old  his- 
torians, had  a drug  store  there  across  the  street  for  forty 
years  before  he  died.  Father  was  digging  a race  and  con- 
templating building  a mill  for  grinding  corn  and  wheat.  He 
began  building  a dam  in  the  river  near  the  south  end  of  the 


JoUVrson  slroel  brid^'o.  VVe  HvcmI  in  Jolic;!  until  IHdb  oi-  18.‘)7, 
niul  tlion  moved  ba(‘k  to  our  old  farm  at  deed’s  (irove.”  {Ihid., 
Abst.,  f}).  ir)().) 

“When  we  lived  in  fJoIiet  and  Will  (bounty  there  didn’t  seem 
to  be  many  fords  in  the  river.  I don’t  remem})er  of  erossing 
at  but  two  or  tliree  places  in  the  nine  miles  of  the  stream  from 
there  down,  and  that  was  in  low  water.  One  ford  was  just 
below  a little  islet,  about  150  yards  below  my  father’s  dam. 
Along  in  the  summer,  in  the  dry  or  loiv  stage  of  the  water,  it 
would  come  up  over  the  wagon  hubs,  pretty  near  up  to  the 
wagon  box,  in  fording  it.  There  was  another  ford  about  three 
miles  down,  just  below  an  islet.  That  was  fully  as  deep  as  the 
other.  It  did  not  seem  to  be  a shallow  riffle  at  all,  but  we 
picked  it  out  for  a good,  smooth  ford — the  best  that  we  could 
find.  There  was  one  just  about  a mile  east  of  Channahon. 
W^as  similar  to  the  others;  about  the  same  depth.”  (Ibid., 
Abst.,  p.  156.) 

^^Some  forded  when  it  was  pretty  deep;  some  crossed  in 
skiffs  and  little  boats  they  had.  I don’t  remember  them  hav- 
ing a ferry  boat.  There  was  no  bridge  except  a foot  bridge 
put  up  on  long  slabs  in  the  upper  part  of  the  town.  They  had 
that  one  season.  In  high  water  it  was  between  a (juarter  and 
a half  a mile  wide;  in  low  water  it  was  not  near  so  wide.  T 
went  up  and  down  the  river  fishing  a good  deal  while  living  at 
’the  point  now  Joliet.  During  the  first  year  of  our  work  there, 
when  father  had  his  dam  partly  in,  one  day  we  heard  music 
on  the  river,  and  I saw  a boat  coming  down  the  river  with 
some  people  on  it.  They  v/ere  playing  on  a long  horn  of  some 
kind,  and  seemed  to  he  enjoying  themselves  bully.  They  came 
right  along  and  went  on  through  and  down  the  river  without 
any  trouble  whatever.  It  seemed  to  me,  as  far  as  I can 
remember  now,  that  it  was  a kind  of  a flat  boat  or  scow,  or 
maybe  a ferry  boat.  It  must  have  been  about  thirty  or  forty 
feet  long,  mayl)e  as  long  as  forty  feet,  and  sixteen  to  twenty 
feet  wide.  It  looked  to  me  like  it  was  al)out  four  feet  deep 
and  drawing  al)out  two  to  tv/o  and  one-half  feet  of  watei\  It 
might  have  been  an  old  boat  that  tins  family  had  bought  up 
north  in  Wisconsin,  or  some  place, 'and  was  going  down  south 
on.  They  said  they  were  going  to  a warmer  (‘ountry,  and  that 
it  was  too  cold  up  north  for  them.  There  were  five  ])eo])le  in 
the  boat,  anyway;  some  men  and  some  women.  They  had 
farming  utensils  and  bed  clothes,  (diairs  and  such  like,  sacks 
of  provisions,  and  carried  a pile  of  such  things  as  a family 
would  have.  We  were  four  or  five  rods  from  them.  That 
must  have  been  about  1833,  or  neai*  that.”  iltyid.,  Abst.,  i)p. 
156,  157.) 

“T  did  not  see  the  boat  have  any  trouble  whatever  in  going 
down  the  river.  They  said  they  had  gotten  along  ni(‘ely.” 
{Ibid.,  Abst.,  p.  157.) 


8 


“Tlio  1)00} )le  oil  tliat  boat  with  the  faianiiig  inijileinents  said 
they  were  going  to  a wanner  country.  Tliat  was  in  tlie  fall  of 
tlie  year.”  {Ibid.,  Ahst.,  pp.  159,  IhO.) 

“I  believe  it  was  sufficient  foi*  boats  drawing  tliree  feet  of 
water  during  the  most  of  tlie  year.”  (Deposition  of  George 
W.  lieed,  Abst.,  p.  IfiO.) 

t used  the  river  ])ersonally  every  year  from  ISb-t  to  1900; 
owned  tliree  ])oats— 14,  IG  and  22  feet  long — on  tlie  river.  Three 
sliallow  ihaces;  otherwise,  no  trouble  for  boat  drawing  three  feet 
of  water.  No  trouble  for  boat  drawing  fifteen  inches  all  the  way, 
except  one  place  at  site  of  old  dam  at  Treat’s  Island  for  about  100 
feet. 

'‘From  Malcolm’s  dam  down  to  the  mouth  there  was  plenty 
of  water  until  you  got  down  about  a half  mile  this  side  of 
Brandon’s  bridge.  There  was  a shallow  place  there  amongst 
the  boulders.  1 had  no  trouble  in  running  a rowboat  there,  if 
I knew  where  to  go,  drawing  fifteen  inches  of  water.  Then 
you  had  clear  sailing  if  you  knew  the  channel,  right  straight 
through  to  Treat’s  Island.  There  you  took  the  left  hand 
channel  going  down;  that  is,  the  east  channel.  That  was  the 
deepest  channel.  About  one-third  of  the  way  down  the  island 
there  used  to  be  an  old  dam,  I think,  or  something.  There  was 
the  shallowest  place.  I have  grounded  there  a great  many 
times;  sometimes  I had  to  get  out  and  pull  it  over.  Generally 
I could  i^ole  it  over. 

"The  length  of  that  shallow  place  was  not,  I don’t  think, 
over  100  feet.  After  that  the  water  was  deep  until  the  mouth 
of  the  DuPage  River.  There  you  had  to  know  the  channel, 
or  a boat  drawing  fifteen  inches  might  strike  bottom.  Then 
you  had  clean  sailing,  until  just  below  the  acqueduct  there  was 
an  old  dam  used  to  be  there,  and  you  passed  through  a rather 
narrow  channel  there.  Below  that  it  was  all  bowlders  for  half 
a mile  to  the  mouth.  If  you  dodged  the  boulders  you  were  all 
right.  If  you  did  not,  you  would  come  to  grief.  These  were 
loose  boulders.  There  would  be  about  three  or  four  inches 
over  the  top  of  them,  maybe  two  feet  of  water  between  them. 
The  boulders  were  about  three  feet  in  diameter,  a great  many 
of  them.  Tliere  was  plenty  of  water  between  the  bowlders  if 
you  could  dodge  them.  About  1885  I made  a trip  from  here 
to  a mile  blow  the  junction  of  the  Kankakee  and  Des  Plaines 
rivers  and  returned  on  the  canal  the  same  day,  making  a trip 
of  about  thirty-two  miles  from  eight  o’clock  in  the  morning 
until  ten  at  night.  That  was  probably  either  in  June  or  Seiv 
tember;  there  was  no  trouble  on  the  water  that  trip.  I made 
two  carries,  one  from  the  canal  into  the  river,  one  from  the 
Illinois  River  into  the  canal.  Me  did  not  have  to  pole  at  all 


iliat  irii).  TIio  boat,  loaded  as  it  was,  drew  Ixdween  twelve 
luid  Ht’teen  inelies.  We  put  in  opiposite  tlie  oatmeal  mill,  a})oiit 
three-cpiarters  of  a mile  below  Jefferson  street. 

‘‘At  that  time  a boat  drawing  two  feet  of  water  would  find 
the  river  navigable  in  the  condition  it  then  was. 

“If  the  loose  boulders  were  removed  and  the  hundred  feet 
of  shallows  were  excavated  at  Treat ^s  Island,  and  the  boul- 
ders at  the  mouth  and  at  Brandon’s  bridge  were  removed,  I' 
could  run  a boat  carrying  three  feet  of  water  on  that.  I pre- 
sume in  the  neighborhood  of  three-quarters  of  a mile,  taking 
all  these  three  together,  would  have  to  be  cleared  out  before 
you  could  get  through  drawing  three  feet  of  water.  * * * 

“ ‘Q.  At  the  mouth  of  the  Des  Plaines  isn’t  the  current 
very  rapid,  boiling!  A.  I should  not  say  so;  there  is  a good, 
heavy  current  above  the  mouth.  ' 

“ ‘Q.  And  the  water  is  in  waves  from  the  rapid  declivity  f 
A.  Unless  it  was  high  water  it  was  not,  but  since  the  drainage 
canal  turned  their  water  in,  why,  it  is. 

“ ‘Q.  Was  it  worse  in  low  water!  A.  If  it  was  as  you 
descrilDe  it,  I would  have  smashed  a boat  there,  and  I have 
been  through  there  a thousand  times,  I guess,  and  I never 
smashed  a boat  there  yet.  ’ 

“If  a man  did  not  understand  a boat,  I don’t  think  he  had 
any  business  there.  * * * 

“I  never  heard  of  people  being  capsized  there.  I never  was. 
I ran  right  through  there  at  the  mouth  of  the  Des  Plaines 
without  any  trouble,  did  not  hit  a rock  on  the  passage.  Went 
a clean  shoot  from  here  down  there.”  (Deposition  of  Arthur 
C.  Clement,  Abst.,  pp.  892,  398,  895.) 

Flanders,  sixty-two  years  old  in  1908,  used  river  all  life.  ( Depo- 
sition of  James  R.  Flanders,  Abst.,  p.  429.) 

“I  was  acquainted  with  the  river  as  a boy  from  my  earliest 
recollection.  I hunted  and  fished  on  the  river  as  a lad,  in 
vacations  went  home  there  about  the  river,  and  in  ’07  or  ’68 
I had  mj  first  boat,  and  from  that  time  probably  up  to  al)out 
ten  years  ago  I used  the  boat  every  year.  * * * 

“We  used  three  classes  of  boats,  canoes,  flat-bottomed  boats 
and  clinker-built  boats.  I have  gone  down  on  flat-bottomed 
boats  with  parties  of  six  or  seven  people  and  camp  equipages. 
On  one  or  two  occasions  we  had  a large  flat-l)ottomed  scow- 
built  boat.  It  would  draw  loads  from  ten  to  twelve  inches  of 
water.  We  found  that  amount  of  water  or  more.  A green- 
horn could  not  have  got  through  on  account  of  the  rocks.  A 
man  that  knew  the  channel  could  go  through  with  a l)oat  in 
from  a foot  to  sixteen  inches  of  water.  It  might  ])ossibly  have 
been  less  in  an  extremely  dry  season.  There  are  three  shallow 
points.  There  is  a ledge  of  gravel  at  Brandon’s  bridge  and  a 


shallow  })()int  at  Treat’s  Island,  and  another  shallow  ])oint 
ti-oin  a (]narter  to  a half  mile  this  side  of  the  junction  of  the 
Des  Plaines  and  the  Kankakee. 

“Our  party  of  seven  went  dovm  in  ’68.  I have  been  over  the 
1‘iver  since  the  flood  of  the  drainage  canal  lias  been  turned  in; 
that  is,  since  January  17,  1900.  Tliere  is  very  mucli  more 
water  since  then,  very  much  more,  indeed.  I found  at  differ- 
ent times  it  was  down  almost  to  normal.  That  is,  when  the  water 
was  shut  off,  when  the  three  young  men  were  drowned  and  the 
water  was  shut  off.  * * * 

“When  we  took  the  boat  with  five  to  seven  people  it  was  put 
into  the  Des  Plaines  River  just  below  the  Adams  dam.  We 
left  the  boat  at  Ottawa.  We  did  not  bring  it  back;  we  did  not 
take  it  down  for  that  purpose.  We  could  have  taken  it  back 
if  we  wanted  to  in  the  I.  and  'M.  Canal.  I have  done  that 
hundreds  of  times.  We  owned  the  boat  and  we  had  no  objec- 
tion except  we  were  not  looking  for  toil.  We  could  have 
brought  it  back.  I have  been  down  on  the  canal  and  down  on 
the  river  with  larger  boats  than  that.  We  could  not  rely  upon 
the  wind,  although  we  had  a sail,  and  there  were  rapids  that 
we  could  pole  by.  We  had  to  pole  it.  Anyone  as  skillful  as 
an  Indian  might  possibly  have  rowed  it,  a boat  of  that  size,  but 
in  these  rapids  with  two  poles  and  two  of  us  in  it  you  could  do 
it.  There  were  three  of  the  rapids  we  would  have  to  pole 
the  boat  to  get  over  the  rapids.  No,  sir,  we  did  not  get  out 
of  the  boat  at  any  time.  A greenhorn  would  get  wrecked 
because  there  were  rocks,  some  visible,  others  not,  but  there 
was  a channel  through  them.  He  might  not  if  he  would  sit 
right  down  and  let  the  boat  go  down.  I presume  I have  ])een 
on  the  river  a hundred  times.  Through  neglect  or  misman- 
agement I have  been  caught  on  the  rocks.  One  occasion  I 
remember  particularly  we  did  not  get  out  and  pull  the  boat. 
We  got  out  and  the  boat  tipped  over.  That  was  at  Brandon’s 
bridge.  There  was  never  any  other  point  where  I was  wrecked. 
I should  say  the  rapids  near  the  mouth  of  the  river  are  per- 
haps 25  rods  up.  I never  regarded  it  as  dangerous  to  go 
through  those  rapids.  Of  course  a person  must  understand  a 
boat  and  must  know  the  channel.  A person  who  did  not  under- 
stand the  boat  and  did  not  understand  the  channel  would  be 
liable  to  get  tipped  over.  I don’t  think  it  would  be  as  hazard- 
ous down  there  at  the  junction  of  the  Des  Plaines  and  Kanka- 
kee as  at  Brandon’s  bridge.  Since  the  Sanitary  District 
water  was  turned  in  we  took  our  boat  in  at  Brandon’s  bridge 
and  floated  to  the  mouth  of  the  Des  Plaines.  I don’t  think  it  is 
hazardous  in  the  present  condition  to  go  down  the  river  if  a 
person  understands  the  boat.  I never  heard  of  any  person 
being  capsized  on  the  Des  Plaines  River  since  the  drainage 
water  was  turned  in.  I never  experienced  any  great  difficulty 
in  going  down  the  river  to  the  mouth  of  the  Des  Plaines.  We 


:ui 

i>'oiu‘rnlly  ('anio  hack  by  liio  way  of  ili(3  I.  and  M.  (kirial,  iriakin^’ 
a [)()rtai>'e  of  about  20  rods  in  the  cana!. 

“Wo  ncvor  attoinptod  to  oonio  ii[)  any  ^reat  distanc'o  sinoo 
tbo  Sanitary  water  was  turned  in.  The  didioulty  would  })e  tlie 
swiftness  of  the  current.  I have  seen  the  time  when  I could 
pick  iny  fellow;  we  could  not  go  up  in  race  horse  time,  but 
we  could  make  it,  give  me  Clement  in  the  stern  with  two 
l)addles.  (Deposition  of  James  R.  Flanders,  Abst.,  pp.  429, 
430,  431.) 

‘‘I  remember  along  in  ’49  or  ’50  seeing  two  large  boats  come 
down  the  river  large  enough  to  carry  three  men  and  a camp 
equipage  in  each  of  them.  I saw  three  men  come  along  the 
two  dams  here,  this  dam  here  and  down  to  Haven’s  dam. 
Each  man  had  their  trunk  and  I suppose  cooking  utensils,  and 
they  put  them  on  a wagon  and  hauled  them  down  to  Haven’s 
dam  on  the  towpatli  and  then  they  put  them  in  the  river  again. 
They  hauled  them  around  the  dams  from  above  dam  number 
one  to  below  the  lower  dam.  The  haul  was  about  three- 
quarters  of  a mile  long.  We  heard  that  they  came  from  Chi- 
cago and  were  going  down  to  New  Orleans  and  then  to  Cali- 
fornia. That  is  what  the  report  was.  A lot  of  the  boys  fol- 
lowed them  down  to  the  dam  when  they  went  over  for  curios- 
ity. That  was  awfully  hot  weather  at  that  time.”  (Deposi- 
tion of  Urias  Bowers,  Abst.,  p.  421.) 

‘H  am  over  69  years  old ; live  at  Sherwin  Junction,  Cherokee 
County,  Kansas.  I was  born  in  Joliet,  Will  County,  Illinois,  on 
November  22,  1838. 

‘^The  Des  Plaines  River  had  different  stages  called  high  and 
medium  stages.  In  the  high  and  medium  stages  of  water  any 
raft  or  boats  could  run  u})  and  down  the  river  at  any  such 
seasons  when  the  river  was  not  frozen,  I would  say  from  Le- 
mont  down  to  Dresden  Heights.  This  is  as  far  as  I know 
positively  that  such  rafts  or  boats  could  l)e  ])ropelled  in  the 
Des  Plaines  River.  During  the  years  I lived  on  the  Des 
Plaines  and  saw  it  daily  there  were  high  and  medium  stages  of 
water.  It  was  generally  high  during  the  spring  and  fall 
seasons.  I would  say  those  high  and  medium  stages  would 
continue  probably  six  months  or  more  of  the  year  and  that  the 
water  was  much  liigher  before  the  year  1848  than  thereafter, 
as  the  same  was  impeded  and  prevented  from  the  natural  flow 
by  dams  and  other  obstructions,  and  the  cultivation  of  the  soil 
and  tile  drainage  caused  the  water  to  escape  faster  and  in  a 
larger  flow  than  before. 

‘‘Before  1848  the  stream  was  a good  sized  river  and  T have 
frequently  seen  cattle  swim  the  river  in  the  summer  time 
across  to  Brushy  Island,  and  the  entire  stream  at  that  time 
was  quite  deep.  If  we  did  not  have  n dry  season  we  would 
have  a good  stage  of  water  all  summer,  and  genei’ally  there 


was  tlii'eo  or  four  mouths  in  the  lattei-  part  of  tlie  year  tliat 
the  or  iiKHlium  stages  eontirnied  to  exist. 

“During  the  time  I resided  on  the  ]‘iver  i saw  small  ])oats 
and  rafts  going  upon  the  river.  The  boats  went  up  and  down 
the  river  and  the  rafts  went  down  the  river.  They  eanie,  so 
far  as  I know,  from  Lemont,  C^ook  County,  Illinois,  and  floated 
on  the  river  to  south  of  Joliet  and  to  the  Hayden  saw  mill. 
I frecpiently  saw  the  boats  and  rafts  eoine  into  the  mill  con- 
taining hardwood  for  manufacture.  I often  heard  of  merchan- 
dise being  shipped  on  tlie  river,  but  have  no  positive  knowledge 
of  sucli  transaction.  ] was  often  in  tlie  river  swimming  and 
was  around  it  fishing,  and  knew  it  well  from  Lemont  down 
to  where  the  Kankakee  and  Des  Plaines  form  the  Illi- 
nois Liver,  which  was  commonly  known  as  the  Channahon 
district.”  (Deposition  of  George  H.  Erhard,  Abst.,  pp.  162-8.) 

In  1856  Swalm’s  Quarry  was  at  the  head  of  Lake  Joliet.  It  had 
a deeply  rutted  road  leading  down  to  what  seemed  a landing  place 
on  the  lake.  It  was  current  reputation  then  that  stone  was  hauled 
down  there  and  loaded  onto  boats.  (Deposition  of  William  W. 
Stevens,  Abst.,  j).  410Q 

In  1847  a boat  with  16  men  and  yoke  of  oxen  upset  in  20  feet  of 
water  and  10  men  drowned,  just  above  mouth  of  river.  (Ibid, 
Abst.,  pp.  403-4.) 

“I  recollect  hearing  of  it  at  the  time.”  (Deposition  of  Harlow' 
H.  Spoor,  Abst.,  p.  418.) 

In  1834,  before  opening  of  canal,  the  Jesups  hauled  lumber  on 
the  river  from  Kankakee  ; the  Jesups  told  me.  They  built  a small 
flat  boat  and  used  it  for  that  purpose : 

“Nobody  told  me  about  the  dam  at  the  mouth  of  the  Des 
Plaines  Liver.  There  was  not  a dam  there.  That  was  in  1834 
and  1835.”  (Deposition  of  William  W.  Stevens,  Abst.,  p. 
415.) 

Henry  Fish  told  me  he  brought  barrels  of  whiskey  down  from 
Chicago  in  boats.  (Excluded.)  “He  told  me  they  were  Mack- 
inaw boats.”  I have  seen  a great  many  of  them.  (Excluded.) 

( Deposition  of  William  W.  Stevens,  Abst.,  pp.  409,  410,  417.) 

RAFTS SAW  RAFTS  COME  THROUGH. 

“I  have  known  of  the  rafting  of  lumber  and  timber  dowm 
the  Des  Plaines  Liver.  I saw  that  when  I was  ten  or  twelve 
years  old.  I saw  a raft  150  to  200  feet  long  and  18  to  20  feet 
wude.  It  came  dowm  the  Des  Plaines  Liver  to  what  they 


:u:; 

Iho  lowpatli  l)ri(l^i>x‘;  tlien  tli(‘y  sej)arte(l  il,  took  pai't 
ot*  it  in  the  Io(‘ks  and  the  other  lo^'s  they  broke  looser  and  tiny 
rolled  over  the  daekson  street  dam.  ddiey  floated  ttiein  into 
the  eaiial  and  tlien  floated  them  over  tin*  dam  again  down  1o 
file  boom  for  eateliing  the  logs  tliey  liad  at  JIavens’ .mill.  1 
have  seen  Mackinaw  boats  on  the  i)es  I^laines  liiver.  d1i(;y 
were  a kind  of  a flat  bottom  boat  and  drew  about  a foot  or  a 
little  over  a foot  of  water.  They  were  15  to  80  feet  long,  ])er- 
haps  longer,  6 to  7 feet  wide.  They  were  loaded  with  ])as- 
sengers  and  loads. 

Describe  the  loads!  A.  I should  think  there  was 
some  merchandise  of  different  kinds,  I could  not  tell  yon  what. 
I think  there  was  salt  come  down,  but  I could  not  say  if  it 
came  on  the  raft  or  on  the  boat.  There  was  a man  in  Chicago 
used  to  own  pretty  much  all  the  salt  there  and  he  had  it  at  a 
very  high  figure,  and  the  people  were  poor  in  them  days,  and 
in  order  to  get  his  pay  out  of  the  salt  he  left  a barrel  here  and 
a barrel  there,  until  he  got  down  to  the  mouth  of  the  river 
or  further  south  to  Saint  Louis. 

The  boat  would  come  down  with  barrels  of  salt! 
A.  Yes,  and  distribute  it  at  different  points  on  the  way  down. 

You  saw  the  boat  with  the  barrels!  A.  Yes,  sir. 

How  old  were  you  then!  iV.  I was  between  10  and 
12  years  old. 

‘‘I  have  been  on  the  river  from  Jackson  street  and  been  on 
a little — had  a little  yawl  boat  that  we  used  to  take  pleasure 
rides  back  and  forth.  I would  go  on  the  river  with  old  John 
Bolin.  He  was  a great  trapper.  In  some  places  it  vras  pretty 
deep,  other  places  it  was  shallow.  In  the  spring  of  the  yeai* 
there  would  be  a big  flood  and  of  course  the  water  would  be 
higher,  and  in  the  summer  time  it  would  be  a little  shallower. 
I made  trips  both  ways  from  the  bridge  here.  I have  bee7i 
up  the  river  to  Goose  Lake.  Tn  the  spring  it  would  be  from 
three  and  one-half  to  five  feet  deep;  in  August  and  Septem])er 
three  feet.  On  the  west  side  of  the  river  before  you  get  into 
Goose  Lake  it  was  from  three  to  three  and  one-half  feet  deep. 
I knew  the  old  8walm  quarry,  or  the  Davidson  (piarry.  I 
have  seen  the  old  road  going  down  to  that.  This  road  took 
an  angle  off  from  the  Brandon’s  bridge  road  and  ran  right 
down  into  the  Swalm  quarry.  Tt  ran  right  plump  down  to  the 
river  gt  the  water’s  edge.  I never  saw  anybody  ford  the  river 
there.  It  was  pretty  deep  there;  I could  not  say  how  deep. 
Mr.  Lappin,  an  old  fisherman  here,  told  me  they  unloaded  the 
boats  down  here  and  took  the  teams  and  hauled  tliem  down 
the  river  below  the  dams  and  loaded  them  up  again.  That  was 
when  I was  a young  man.  Mr.  Lappin  is  dead.”  (Deposi- 
tion of  Frances  Belz,  Abst.,  pp.  -t89,  1-40,  441.) 

‘H  guess  I was  not  more  than  five  or  six  years  old  when  T 


344 


snw  tlio  first  ral't  (oiiie  down  ])eforo  there  were  any  dams 
built  up  here,  and  I tliink  before  a dam  was  built  down  liere 
at  Jefferson  street.  Well,  I was  most  too  small  to  know  at 
tiiat  time  where  these  rafts  (*ame  from.  * * * j couldn’t 

exactly  say  as  to  the  size  of  the  raft.  It  might  liave  l)een 
two  or  three  or  four  or  five  lenglits,  but  then  there  were  two 

sections  wlien  I come  to  think  of  it.  * * * looked  as 

though  there  were  a great  many  logs  in  it. 

* * * * * * 

“ I saw  on  the  river  nothing  l>ut  a yawl  ]}oat;  that  looked  to 

me  like  those  boats  they  have  in  Cliicago  on  the  lake;  them 
little  boats;  it  vras  a trapper,  a nice  big  boat  everybody  was 
looking  at  it.  There  wms  probably  one  hundred  on  tlie  bank 
wanted  to  see  it.  It  was  probably  about  sixteen  or  seventeen 
feet  long.  I should  judge,  maybe  six  feet  wide.  I have  not 
any  idea  how  much  water  it  drew.  I know  we  lived  right  up 
there  by  Jackson  street  at  that  time,  and  he  stopped  there 
over  night,  and  he  showed  us  the  furs  that  he  had  been  trap- 
ping. He  had  come  along  from  Wisconsin,  up  through  there 
that  way.  I saw  the  furs  on  the  boat. 

‘Hie  was  showing  them  to  my  brothers,  a lot  of  steel  trajjs 
and  provisions,  a tent  and  a whole  outfit.  There  were  pro- 
visions on  it  and  boxes.  Everything  was  boxed  up,  and  then 
I saw  several  smaller  boats  after  that,  trappers.  * * * 

These  trappers  transported  equipment  on  these  boats.  The 
boats  were  propelled  by  oars.  It  had  a sail,  now  I come  to 
think.  The  sail  was  lying  down,  the  poles  were  in  the  boat. 
He  didn’t  claim  to  have  any  difficulty  in  navigating  the  river.” 
(Deposition  of  Samuel  Hatons,  Abst.,  pp.  483-484.) 

“I  am  familiar  with  the  Des  Plaines  Piver,  and  have  seen 
it  in  all  seasons  of  the  year  and  many  years.  I seen  logs  come 
down  the  river  in  some  shape.  Sometimes  probably  in  small 
rafts,  and  sometimes  scattered.  I have  seen  them  in  the  river. 
I don’t  have  much  particular  recollection  about  them,  though, 
but  I seen  them  in  the  river  floating  down. 

n*  # * p recollection  that  the  rafts  did 

come  down  before  the  canal  was  opened ; ’45  to  ’47, 1 would  not 
state  particularly  just  what  years.  I used  to  see  them  fre- 
(luently  in  the  river  and  logs  coming  down  in  some  shape. 

“I  know  they  have  a boom  there  at  the  dam,  where  the 
logs  were  held,  that  must  have  been  rafted  there.  Used 
to  see  logs  there  in  this  boom  very  frequently  in  the  river. 
They  were  there  just  above  the  dam,  at  the  sawmill,  and  ready 
to  be  used  there. 

a*  * * p seen  boats  come  up  the  river  here  that  were 

said  to  be  trappers’  boats,  or  probably  fishermen’s,  but  I 
never  saw  any  freight  carried  on  the  river.  I saw  evidence, 
I think — there  was  traffic  somewhere.  I know  of  the  general 


145 


talk  or  i‘0[)iiiiiti()ii  in  ilio  inn^iihoi’Iiood  us  to  tli(‘  navi^uhiliiy 
of  ilio  riven*.  It  was  genei'ally  (‘onsidored  t)y  (iV(n*ybody  of  llui 
old  inliabitaiits  as  l)eing  a naviga})le  streaTn.  Idioy  always 
rogarded  it  as  a iiaviga!)le  stream.  This  was  long  prior  to  the 
opening  of  tlie  canal.  That  was  about  1848,  so  that  it  was 
generally  understood  in  tlie  eoinmimity  tliat  it  was  a naviga})le 
sti*eam. 

* * * I lived  in  Channahon  about  a year  or  such  a mat- 

ter along  in  ’43,  and  I used  to  see  cordwood  piled  up  on  the 
banks  of  the  river  on  that  ford,  that  I know  must  have  been 
landed  there,  I think  from  some  boat,  because  there  was  no 
timber  anywhere  around  there.”  (Deposition  of  John  W. 
Taylor,  Abst.,  pp.  488-489.) 

‘ ‘ I made  a statement  that  I had  seen  a dock  below  here,  but 
what  it  is  for  I don’t  know;  but  not  any  boat  or  any  stone  on  a 
boat.  They  asked  me  if  I had  seen  a dock,  and  I would  liave 
sworn  to  it  in  Mr.  Chaney’s  office.  I thought  of  it  after- 
wards what  that  dock  was  built  for.”  (Deposition  of  Lewis 
K.  Stevens,  for  Defendant,  Abst.,  p.  553.) 

FUKS. 

There  were  a great  many  people  engaged  in  the  business 
of  trapping  in  the  early  days;  everybody,  most,  was  a trapper 
that  lived  anywhere  near  that  stream.  I have  known  one  man, 
and  that  is  the  only  one  that  I knew  personally  how  many  he 
had.  He  had  200  traps;  that  was  principally  for  muskrat. 
* * * Others  that  did  use  skiffs,  used  them  to  carry 

these  traps  out  and  set  them  at  different  places.  They  went 
every  morning  and  gathered  up  what  they  had  caught  and 
skinned  them  and  brought  the  skins  in.  * * * Charley 

Smith,  probably  a good  many  people  know  him,  or  know  of 
him,  was  a great  fur  gatherer.  He  didn’t  trap  any  himself; 
he  bought  furs  from  the  farmers  and  others.  Most  of  the 
trappers  in  the  early  days — away  back  about  ’40 — most  of 
them  lived  right  here  along  the  river  bank  and  had  a skiff  of 
their  own;  they  were  not  what  you  might  call  professional 
trappers;  the  professional  trappers  came  a little  later,  in 
1835  and  ’38;  they  came  from  Chicago  and  some  other  places.” 
(Deposition  of  John  McCowan,  for  Defendant,  Abst.,  p.  624.) 

FUR  TRADE. 

There  was  some  boating  on  it,  mostly  trappers  and  hunters : 

‘M  observed  that  prior  to  1860  there  used  to  be  more  water 
in  the  river  in  the  summer  time  than  theT*e  was  after  that  for 
some  years. 

‘‘That  was  because  the  farmers  v^ere  draining  tlieir  lands 
about  that  time  everywhere  by  ditching  and  tiling.  The  tiling 


and  di’ainiii^’  di*ied  up  tlio  sloiiglis  and  tlien  in  tlie  summer 
there  was  no  water  in  the  river.  It  was  lower  afterwards 
than  it  was  before  the  i)utting  in  of  tlie  drains.  1 liave  been 
fishing  np  tliere  i)rior  to  ISfiO  wlien  tlie  water  was  two  feet 
and  some  ])laees  four  feet  deep.  After  tliat  in  a very  dry 
summer  there  was  no  wmter  running  tlirough  the  river  at 
Loekport.  Of  course  there  was  plenty  of  water  in  the  spring 
and  fall.”  (Deposition  of  Obadiali  Hicks,  Abst.,  p.  436.) 

They  had  liateaux  with  cabins  on.  (Id.,  p.  438.) 

They  were  working  for  some  company.  (Id.,  p.  439.) 

BATTEAUX  WITH  CABTX. 

1 will  be  eighty-two  years  old  })retty  (juick.  Have  lived  in 
doliet  fixty-six  years  this  spring.  That  is,  I came  in  1852. 

‘On  the  spring  of  1853  and  the  fall  of  1852  I hunted  on  the 
big  island  this  side  of  Lemont  a good  deal,  and  along  in  the 
spring  of  the  year  when  the  water  was  breaking  up  I went 
out  again,  and  in  the  big  island  you  understand  there  was  a 
number  of  fishing  men  had  their  camps,  and  trappers  there; 
they  were  camping  down  on  the  islands.  We  talked  to  them. 
They  had  a boat  there.  It  was,  I should  think,  six  or  eight 
feet  wide  and  about  twenty  feet  long,  and  they  had  a cabin  in 
it  and  a bunk  to  lie  down  on.  That  is  the  only  boat  I ever  saw 
on  that,  except  a little  row  boat.  They  had  a good  deal  of  work 
. getting  their  boat  up  and  down  the  river.  They  got  on  the 
riffles  and  had  to  get  out  in  the  river.  They  wore  heavy  rub- 
ber boots  and  pushed  it  in  the  deep  water.  We  used  to  fish  up 
and  down  from  Loekport  to  Willow  Springs.”  (Deposition 
of  William  Found,  Abst.,  p.  461.) 

BAFTS. 

“I  have  seen  logs  come  down  as  far  as  this  here  basin  and 
then  from  there  they  were  dumped  over  the  dam  and  shipped 
down.  They  went  down  to  a sawmill  that  was  right  below  the 
next  dam  there  called  the  Haven  sawmill.  In  those  days  that 
is  all  I saw.  * * * p have  seen  these  logs  being  sent  down 

a number  of  times.  They  raft  them  down.  I couldn’t  tell  you 
the  size  of  those  rafts.  I never  took  particular  pains  to  look.” 
(Deposition  of  Jacob  Blaess,  Abst.,  p.  481.) 

“I  have  known  of  the  rafting  of  lumber  and  timber  down 
the  Des  Plaines  Biver.  I saw  that  when  I was  ten  or  twelve 
years  old.  I saw  a raft  150  to  200  feet  long  and  18  to  20  feet 
wide.  It  came  down  the  Des  Plaines  Biver  to  what  they  called 
the  tow  path  bridge ; then  they  separated  it,  took  part  of  it  in 
the  locks  and  the  other  logs  they  broke  loose  and  they  rolled 
over  the  Jackson  street  dam.  They  floated  them  into  the  canal 
and  then  floated  them  over  the  dam  again  dovm  to  the  boom 
for  catching  the  logs  they  had  at  Havens’  mill.  I have  seen 


:m-7 

AliU'kinaw  bonis  on  tlio  Dos  DIninos  Divor.  I^lioy  wore;  n kind 
of  n (Ini  Ivotioiii  boat  and  drew  aboiii  a iooi  or  a litilo  over  a 
iooi  of  waior.  ''riiey  were  15  to  lU)  feet  perhaps  lon^^er, 

six  to  seven  feet  wide.  They  were  loaded  with  passengers 
and  loads. 

“Q.  Describe  tlie  loads.  A.  T slionld  think  there  was 
some  merchandise  of  different  kinds,  I could  not  tell  you  what. 
I think  there  was  salt  come  down,  but  1 could  not  say  if  it  came 
on  the  raft  or  on  the  boat.  There  was  a man  in  Cliicago  used 
to  own  pretty  mucli  all  the  salt  there  and  he  had  it  at  a very 
high  figure,  and  the  people  were  poor  in  them  days,  and  in 
order  to  get  his  pay  out  of  the  salt  he  left  a barrel  here  and  a 
barrel  there  until  he  got  down  to  the  mouth  of  the  river  or 
further  south  to  Saint  Lonis. 

The  boat  would  come  down  with  barrels  of  salt! 
A.  Yes,  and  distribute  it  at  different  points  on  the  way  down. 

You  saw  the  boat  with  the  barrels!  A.  Yes,  sir. 

How  old  were  you  then!  A.  I was  between  10  and 
12  3"ears  old. 

have  been  on  the  river  from  Jackson  street  and  been  on 
a little — had  a little  yawl  boat  that  we  used  to  take  pleasure 
rides  back  and  forth.  I would  go  on  the  river  with  old  John 
Bolin.  He  was  a great  trapper.  In  some  places  it  was  pretty" 
deep,  other  places  it  was  shallow.  In  tbe  spring  of  the  3"ear 
there  would  be  a big  flood  and  of  course  the  water  would  be 
higher,  and  in  the  summer  time  it  would  be  a little  shallower. 
I made  trips  both  ways  from  the  bridge  here.  I have  been  up 
the  river  to  Goose  Lake.  In  the  sjnfing  it  would  be  from  three 
and  one-half  to  five  feet  deep;  in  August  and  September  three 
feet.  On  the  west  side  of  the  river  before  you  get  into  Goose 
Lake  it  was  from  three  to  tliiee  and  one-half  feet  deep.  I 
knew  the  old  Swalin  (piarr\%  or  the  Davidson  quari\v.  I have 
seen  the  old  road  going  down  to  that.  This  road  took  an  angle 
off  from  the  Brandon’s  bridge  road  and  ran  right  dovm  into 
the  Swalm  qnariy.  It  ran  right  plump  down  to  the  river  at 
the  water’s  edge.  I never  saw  an\d)ody  ford  the  river  there. 
It  was  pretty  deep  there;  I could  not  say  how  deep.  Mr.  Lap- 
pin,  an  old  fisherman  here,  told  me  they  unloaded  tlie  boats, 
down  here  and  took  tbe  teams  and  hanled  them  down  the 
river  below  the  dams  and  loaded  them  np  again.  That  was 
when  I was  a young  man.  Mr.  Lappin  is  dead. 

^‘We  took  the  boat  and  run  it  into  the  bank  and  took  a rope 
and  anchored  it  and  two  men  pull  on  the  rope  until  we  got  near 
the  end  of  the  anchor  and  then  we  hugged  the  bank  and  kept 
on  that  way  until  we  got  np.  We  came  up  hand  over  hand  in 
the  river.”  (Deposition  of  Francis  Belz,  Abst.,  pp.  489,  440, 
441,  448.) 


348 


JOL  I Pyr  SIGNAL. 

‘Moliet  Signal,  Tuesday,  i^Iareli  28,  1848.  Tolls  on  the 
Canal.  * * * The  rafting  of  timber  on  the  canal  or  feed- 

ers is  prohibited  unless  by  special  or  written  agreement  of 
the  superintendent  of  the  canal.  Any  violation  of  this  order 
will  subject  the  person  violating  it  to  a penalty  of  $10  for 
every  such  otfense.”  (Deposition  of  Francis  Belz,  Abst.,  p. 
444.) 

This  regulation  was  aimed  at  an  existing  practice.  Tliey  would 
not  regulate  or  prohibit  a thing  that  didn’t  happen. 

Tanner — Has  many  times  seen  the  logs  in  the  upper  basin  at 
the  boom  and  seen  them  tumbled  over  the  dam  and  floated  down 
to  the  mill.  (Deposition  of  Eiley  Tanner,  Abst.,  p.  461.) 

have  lived  in  Will  County  since  1859.  Have  boated  on 
the  Des  Plaines;  used  to  from  1869  to  1876,  usually  in  July 
and  August.  We  started  in  one  boat  just  below  tlie  old 
planing  mill  at  Adams  ’ dam.  * * * We  generally  stopped 

at  Treat’s  Island  on  account  of  trouble  in  getting  through. 
There  is  a shallow  place  there.  I have  been  through  there. 
I remember  twice  going  down  through  below  there  with  A.  C. 
Clement.  I had  a joint  interest  with  him  in  a flat  bottomed 
boat.  We  had  to  get  out  at  times  and  lift  her  over.  The 
water  was  rather  low  that  summer  but  we  managed  to  get 
through  all  right  with  the  boat.  There  were  quite  a number 
of  boulders  scattered  around  in  the  bed  of  the  river.  The 
boulders  would  be  two  feet  or  more  in  diameter  and  from  that 
smaller;  the  largest  ones  would  show  the  tops  above  the  water. 
We  had  no  difficulty  anywhere  else  in  getting  through.  There 
was  some  difficulty  there  because  the  boulders  were  pretty 
thick  and  it  was  difficult  to  run  a boat  through  in  the  swift 
running  water.  The  depth  of  water  in  Lake  Joliet  near  Flat- 
head  Mound  was  from  twelve  to  twenty  feet,  I should  say, 
varying  of  course  at  different  points.  In  1869  I made  the  trip 
from  here  down  to  Marseilles.  We  had  to  pole  through  and 
lift  over  at  the  one  point  at  the  head  of  Treat’s  Island.” 
(Deposition  of  Henry  H.  Pohl,  Abst.,  p.  444.) 

‘H  am  sixty-five  years  old.  Live  in  Joliet  and  have  lived 
in  IVill  County  ever  since  1853.  Have  been  acquainted  with 
. the  Des  Plaines  Eiver  continuously  since  that  time.  Have 
gone  upon  it  in  boats.  My  last  boat  was  19  feet  10  inches 
long,  17  feet  on  the  water  line,  5 feet  beam.  Ht  had  a three- 
inch  keel  on  the  outside  and  it  had  a sail.  I have  carried 
1,500  pounds  of  luggage,  two  men  at  200  pounds  apiece,  they 
would  weigh  that  or  more,  and  a couple  of  hundred  pounds  of 
decoy  ducks.  I would  go  down  twice  a year,  in  the  spring  and 
again  in  the  fall.  From  the  early  use  in  the  spring  to  the  latest 


use  ill  the  I'all  it  would  iie  about  five  or  six  iiiontlis  l)(dAV(;(ui. 
At  the  head  ol*  db*eat’s  Island  was  the  shallowest  y>laees.  I 
luive  been  througii  there  two  hundred  times.  We  used  to  ^o 
[iretty  often.  I have  gone  down  there  when  tlie  water  at  the 
head  of  Treat’s  Island  was  four  feet  deep  on  the  riffles.  At 
the  shallowest  })lace  we  could  go  up  there  with  a boat  draw- 
ing 18  indies  of  water.  I once  loaned  two  boats  to  a man  on 
the  island  to  haul  his  hay  off  the  island.  I had  two  boats 
there  14  feet  long;  they  were  27  inches  wide  on  the  bottom 
and  44  on  the  top.  He  put  the  two  boats  together  and  took  a 
big  load  of  hay  off  the  island  there.”  (Deposition  of  George 
Albert  Parrent,  Abst.,  p.  448.) 

The  road  down  to  the  head  of  the  lake  led  to  a kind  of  landing 
place  at  a deep  place.  It  must  have  been  for  loading  boats.  (Id., 
Abst.,  p.  449.) 

They  told  me  in  1853-5  it  was  used  to  haul  stone  down  to  boats 
to  take  down  the  river.  I have  owned  40  or  50  boats  on  the  Des 
Plaines.  (Id.,  Abst.,  p.  449.) 

knew  of  the  report  of  the  men  being  drowned  at  Dead 
Men’s  Hole  near  the  mouth  of  the  Des  Piaines.  I came  up 
that  morning.  I worked  at  Marseilles  on  the  derricks  and 
they  ran  out  of  safety  fuse,  and  Mr.  Griswold  out  here  in 
Yankee  settlement  used  to  make  it.  They  sent  me  to  Gris- 
wold to  get  some  fuse  for  blasting  purposes.  5Yhen  I came 
up  there  they  told  me  that  the  six  men  were  drowned  and  the 
boat  upset.  I passed  right  alongside  of  the  river  at  that  point. 
I could  not  tell  how  many  people  were  there.  They  told  me 
there  were  six  drowned  that  morning  and  I think  a yoke  of 
oxen.”  (Deposition  of  Charles  Hoy,  Ahst.,  p.  467.) 

REPUTATION  OF  USE. 

Shabbona,  the  Indian  chief,  80  years  old,  in  1857  told  me  the 
Indians  used  the  river  both  ways  and  the  white  men  used  it  going- 
down  stream.  The  high  water  of  1857  was  6 feet  higher  than  that 
of  1907.  (Deposition  of  George  W.  Paymond,  Al)st.,  p.  434.) 

Excluded  by  the  Court. 

‘H  knew  Ghabbona,  the  Pottawattomie  Indian  Chief.  He 
told  me  the  current  report  as  to  the  French  and  Indian  trading- 
in  furs  up  and  down  the  river.  * * * He  told  me  about 

going  up  the  river  in  canoes.  I asked  him  what  the  canoes 
were  doing  up  the  river  here.  He  said  they  bring  furs,  they 
brought  furs  and  took  them  up  to  the  big  watei'S  from  here,  at 
Fort  Dearborn  somewheres.  I asked  him  how  they  could  pull 
over  these  riffles,  and  he  indicated  with  a cane  G)C)led  up.' 


‘> 


50 


''lOiat  is  all  I roiiienibei'.  ^lOiat  was  about  tlie  outbreak  of 
the  (bvil  War  when  Sbal)boua  told  me.”  (Deposition  of 
George  At)bott,  Abst.,  p.  455.) 

^‘My  motlier  came  to  Will  County  in  ’51  and  my  father  about 
’55  or  ’54.  My  motlier’s  name  was  Susan  Sisson.  Her  folks 
settled  on  the  Hanford  farm  a mile  east  of  Lockport  in  ’51, 
and  moved  from  there  north  of  the  river  in  ’52  or  ’55.  * * * 
1 heal'd  my  mother  tell  several  times  about  the  raft  of  logs 
going  down  the  river  in  the  early  days.  That  was  before  I 
was  old  enough  to  remember  anything,  and  the  men  having 
little  shacks  for  houses  on  the  raft  and  they  done  the  cooking 
in  the  house,  and  they  stopped,  I think,  a day  or  two  right 
there  at  my  grandfather’s  place;  I don’t  know  how  long.  I 
heard  lier  speak  about  it  many  times.  My  father  and  mother 
are  both  dead.”  (Deposition  of  George  S.  Wightman,  Abst., 
pp.  425-426.) 

REPUTATION  AS  TO  THE  BOAT  LOAD  OF  WHEAT, 

(AYoodruff’s  History  of  "Will  County,  Abst.,  pp.  401-2)  : 

‘‘As  early  as  1854  the  products  of  the  farm  were  boated 
down  the  Kankakee  to  the  Des  Plaines  and  up  the  latter  river 
to  Chicago.  It  is  related  that  during  the  year  named  some 
parties  loaded  a boat  on  Sugar  Creek,  a tributary  to  the  Iro- 
quois, with  500  bushels  of  oats,  500  bushels  of  wheat  and  some 
hams,  with  the  design  of  taking  them  to  Chicago  to  supply  the 
garrison  stations  there.  The  trip  down  the  Kankakee  was 
accomplished  without  accident  or  unusual  trouble,  but  after 
entering  the  Des  Plaines,  when  near  Treat’s  Island,  the  boat 
dipped  water  and  so  dampened  the  grain  that  they  were 
obliged  to  unload  and  try  to  dispose  of  their  produce  at  that 
point.  At  the  time  settlers  were  arriving  in  that  neighbor- 
hood quite  rapidly,  and  they  had  no  trouble  in  disposing  of 
their  whole  cargo,  the  oats  at  50  cents  and  the  wheat  at  75 
cents  per  bushel.”  (Deposition  of  lYilliam  W.  Stevens,  Abst., 
p.  402.) 

The  boat  load  of  grain  getting  wet  at  Treat’s  Island  was  com- 
mon report  at  the  time : 

“I  crossed  the  river  at  one  time,  and  only  once,  I guess,  at 
the  mouth  of  the  Des  Plaines  where  it  goes  into  the  Kankakee 
I crossed  in  a bugg^L  In  some  places  it  was  pretty  deep  and 
some  of  the  places  it  was  rather  shallow.”  (Deposition  of 
Harlow  H.  Spoor,  Abst.,  p.  419.) 

“During  most  of  the  year  the  Des  Plaines  Piver  was  of 
sufficient  depth  to  permit  the  navigation  of  boats  for  com- 
mercial purposes.  There  might  have  been  a drought  or  low 
water  and  at  that  stage  it  would  not  have  been  safe,  but  as  a 
general  thing  through  the  biggest  part  of  the  year  it  took 


slU'li  boats  as  I s'poak  of  up  and  down  wltliont  any  Ironble. 
1 know  that  to  bo  a i'aot  rroni  niy  knowlodgo  of  llio  doptb  of  tlio 
rivor,  as  1 observed  it  at  that  time.  That  is  the  way  I lookcnl 
at  it — the  depth  of  the  i-iver.  I i‘emenil)er  one  time  wlien  \ 
was  living  at  JUmd’s  (Jrove,  before  I moved  south  in  Mereei* 
(\)nnty,  tliat  my  brotlier  was  down  at  the  river  and  ^ot  some 
wlieat  from  a man  who  liad  gotten  the  wlieat  wet  in  trans- 
])orting  it  in  a boat  and  was  selling  it  to  the  farmers.  My 
brother  fetched  home  five  or  six  bushels  and  we  spread  it  out 
on  sheets  and  quilts  to  dry  and  use  it.  It  was  spoiling  as  it 
was  and  we  had  to  dry  it  to  keep  it  from  spoiling.’’  (Deposi- 
tion of  George  W.  Eeed,  Abst.,  pp.  157-8.) 

‘Mdie  only  thing  I learned  about  the  boat  was  that  the  grain 
got  wet  and  the  man  who  had  it  was  selling  it  out  because  he 
couldn’t  take  it  on  to  market.  On  account  of  it  being  wet  it 
would  spoil  and  not  sell  on  the  market.  I learned  that  from 
my  brother.  He  went  down  to  the  river  and  he  met  a man  who 
had  gotten  some  of  the  wheat,  who  told  him  the  wheat  was  wet 
and  there  was  a man  on  the  river  in  a boat  selling  it  out,  so 
my  brother  went  and  bought  some.  I heard  it  talked  in  the 
neighborhood  about  it  being  too  bad  that  the  wheat  got  wet. 
My  brother  was  about  20  or  21  years  old  when  that  happened. 
I was  not  so  familiar  with  the  Des  Plaines  Kiver  in  1833  and 
1834  as  I was  before  that.  I remember  the  Beard  dam  at 
Beardstown,  across  the  river.  T don’t  remember  the  date. 
Tt  was  about  the  time  the  feeder  dam  was  put  across  the  Kan- 
kakee. That  was  several  years  after  my  father  was  building 
the  dam  at  Joliet.  * * * j don’t  rememher  any  falls  or 

anything  that  you  could  call  rapids  hetween  Joliet  and  the 
mouth  of  the  river.  There  were  some  places  not  so  deep  and 
some  places  the  water  was  pretty  swift.  1 don’t  remember 
any  rocks  across  the  channel,  it  was  a pretty  smooth  lime- 
stone bottom.  Those  fords  I think  they  did  aim  to  find,  gen- 
erally, just  above  riffles.”  (Deposition  of  George  AY.  Peed, 
Abst.,  p.  159.) 

”lt  runs  in  my  mind  that  that  boat  with  the  grain  came 
from  the  Bull  Bony  settlement  (Bourbonnais  Grove),  a settle- 
nient  on  the  Kankakee  Pivei*.  That  was  way  up  near  Kan- 
kakee City.  Kankakee  is  right  whei'e  the  Bull  Bony  settle- 
ment was  then,  I think.”  (Deposition  of  George  AY.  lieed, 
Abst.,  p.  160.) 

Air.  Brockway,  59  years  old,  always  lived  in  AAJll  County,  near 
river;  boated  and  used  river  a great  deal. 

have  forded  the  river  with  a team  just  at  the  head  of 
Treat’s  Island  (juite  often.  \Ye  would  go  over  there  when 
gooseberries  were  ripe  to  get  gooseberries.  I have  forded  it 
when  the  water  would  come  into  the  wagon  box.  Sometimes 


it  would  he  (juite  a hit  lower  and  eonie  up  to  the  liuhs.  Soine- 
tiuies  1 went  there  and  eouldn’t  get  across,  wouldn’t  risk  it; 
it  was  too  deep  and  I would  walk  hack.  Prohahly  three  times 
a year  I would  do  that,  as  long  as  there  were  berries.  * * * 

My  father  told  me  about  taking  a flat  boat  down  the  river 
from  Peoria  to  Joliet.  He  said  he  got  ten  dollars  for  it  and 
bought  a cow  with  the  ten  dollars.  He  told  me  this  about  two 
years  before  he  died.  He  did  not  fix  the  date  of  the  trip.  He 
just  spoke  of  it  as  a flat  boat  lie  took  down  the  river.  I 
suppose  it  would  be  20  or  JO  feet  long,  something  like  that.  I 
know  Davidson’s  quarry.  There  was  a road  there  for  awhile 
that  went  down  to  the  river.  I have  lieen  there  and  seen  where 
it  came  to  the  water’s  edge.  It  was  quite  deep  there,  made  on 
purpose  for  loading  stuff  onto  the  boats  from  the  road. 
Idiere  were  ruts  in  the  road.  There  was  no  road  on  the  other 
side  of  the  river  opposite  where  this  landing  place  was.  There 
was  a ford  back  up  that  main  road  where  Brandon’s  bridge  is. 
I have  forded  it  there  in  July  and  August.  It  ivotild  come  up 
pretty  near  to  the  box  in  the  loivest  season  of  ivater.’’  (De- 
position of  Edward  D.  Brockway,  Abst.,  pp.  458-459.) 

Mr.  Brockway  knows  and  describes  the  old  quarry  road  leading 
down  to  the  landing  place  at  the  head  of  Lake  Joliet.  (Id.,  Abst., 
p.  459.) 

Davidson  used  it  to  send  his  quarry  stuff  down.  (Id.,  Abst., 
p.  460.) 

‘‘Father  came  in  1836.  * * * j have  heard  my  father 

and  others  tell  the  current  reputation  of  the  history  of  the 
early  days  on  the  Des  Plaines  River.  I have  heard  my  father 
say  many  times  that  supplies  were  carried  up  from  the  south 
as  far  as  Lockport  or  up  to  here.  When  father  came  there 
was  no  canal  and  there  was  no  railroad.  I remember  particu- 
larly of  his  speaking  often  that  there  was  some  man  cornered 
coarse  salt  in  Chicago,  and  that  all  the  way  they  were  able  to 
get  it  was  down  the  river,  and  it  cost  them  $10  a barrel.  I 
have  heard  him  say  that  many  times.  That  is  the  way  I under- 
stood it.  There  was  no  other  way  to  get  it  unless  they  went  by 
wagons.  That  was  long  before  the  time  when  I went  fishing. 
There  was  a Mr.  Frederick  Collins  used  to  live  there  and  the 
two  old  gentlemen  used  to  sit  and  talk  over  old  times,  and  I 
have  heard  them  talk  these  things  over  and  over  and  over 
again. 

******* 

“I  only  know  about  supplies  coming  rq)  from  the  south  by 
river  from  what  I heard  my  father  say.  He  said  it  came  up 
on  a boat.  I don’t  know  what  kind  of  a boat,  but  supplies 
came  up,  and  some  came  by  wagons  which  they  called  prairie 


sclioolUM’s.  lie  said  soiiu'  (*ain(‘  by  l)()al.  Ifc^  spoken  of  rniit 
brought  ii'])  from  furtlier  soulli  boeauso  tlior(‘  was  no 
t'niit  here.”  ( 1 tojiosition  of  Mliza  ]\  Jon(*s,  Abst.,  pj).  4-f)2- 
4():b) 

Kxeliuled  by  the  Ck)nrt. 

“I  have  heard  from  Mr.  Paddock  and  from  old  settlers  tlie 
(mrrent  reputation  as  to  the  liistory  of  the  early  nse  of  the 
river.  1 have  lieard  'Mr.  Paddock  and  onr  neigld)or,  Mr.  (Jollins, 
in  talking  over  their  early  times,  state  that  supplies  were 
l)roiight  np  tlie  river  by  boat  in  an  early  day;  that  is,  prior  to 
the  opening  of  the  canal.  I have  heard  them  speak  of  having 
salt  brought  down  from  Chicago.  They  spoke  of  some  fellow 
who  got  a corner  on  the  salt  and  they  had  to  pay  an  enormous 
price,  $10  a barrel  for  the  salt;  it  came  down  the  river,  brought 
down  by  boat.  I heard  that  from  them  before  I went  to  live 
with  Mr.  Paddock.  He  talked  about  those  things  after  my  liv- 
ing Avith  him.”  (Deposition  of  Samuel  W.  Jones,  Abst., 
p.  463.) 

Excluded  by  the  Court. 

‘H  have  heard  my  father  (he  came  here,  I think  he  said,  in 
1836)  say  they  brought  apples  up  the  river.  1 asked  him  how 
they  got  supplies  when  they  first  came  here.  Well,  he  said 
they  brought  it  in  on  boats.  1 don’t  know  what  kind  of  boats. 
He  said  that  they  brought  some  from  the  south  and  some  from 
Chicago.  He  said  they  brought  salt  and  groceries  from  Chi- 
cago.” ( Deposition  of  Frank  Paddock,  Abst.,  p.  469.) 

Excluded  by  the  Court. 

‘‘I  have  an  uncle  by  tlie  name  of  J.  Goodnougli.  1 couldn’t 
tell  you  the  year  my  uncle  came  to  Illinois.  It  was  somewhere 
either  before  1 was  born  or  after  1 Avas  born,  that  he  AAms  here, 
but  I have  heard  him  tell  the  story  a number  of  times  about 
his  journey  from  the  east  to  8t.  Louis.  * * * 

‘‘He  found  out  at  Chicago  tliat  by  taking  the  Des  Idaines 
River  he  could  go  doAvn  to  St.  Louis,  and  there  Avas  two  othei- 
men  Avith  him  and  they  either  got  a boat  there  or  at  the  river. 
1 couldn’t  say  which;  and  they  went  down  through  here.  He 
described  going  through  doliet,  and  down  at  Morris;  he  de- 
scribed a stream  going  in  on  the  Avest  side,  south  side  of  the 
river  I Avould  say,  and  just  beloAV  that  an  island,  and  south  of 
the  island  was  jirairie;  that  was  Morris.  * * * 

“I  couldn’t  say  how  long  my  uncle  has  been  dead,  because 
Avhen  we  came  aAvay  from  New  York  State  Ave  heard  nothing 
from  them  until  years  afterAvard.  1 had  another  uncle  there 
that  wrote  of  his  death,  but  what  time  T couldn’t  say.  I saw 
my  uncle  that  went  doAvn  to  St.  Louis  the  last  time  just  before 
\A"e  came  to  Illinois  in  ’46.  I was  twelve  or  thirteen  years  old 


854 


tlioii.  I have*  hoard  iiiy  iiiiole  toll  tliis  story  \ have  narrated 
two  or  throe  times,  and*  also  my  mother  told  it  afterwards,  be- 
cause it  was  a ^'roat  thin^’  in  tliat  section  of  the  country  to 
take  such  lon^‘  tri))s  as  lie  had.  He  went  down  to  Cairo  and 
11'})  the  Ohio  River,  and  around  liome  that  way.  The  folks 
thought  he  was  dead  because  he  was  gone  so  long.”  (I)e})Osi- 
tion  of  L.  F.  Conant,  Abst.,  p}).  dOG-dDA) 

Excluded  by  the  Court. 

UPPER  DES  PLAINES. 

Old  settlers  (Short  and  Miller)  claimed  they  came  up  in  canoes 
bringing  goods  and  provisions.  (Deposition  of  Christian  T.  Hey- 
decker,  Abst.,  p.  20G.) 

ILLINOIS  FORMED  BY  DUPAGE  AND  DES  PLAINES. 

‘^According  to  Schoolcraft,  when  the  Des  Plaines  and  Du 
Page  come  together  they  form  the  Illinois,  and  that  junction  is 
about  two  miles,  may  be  a little  more  or  a little  less,  from  the 
junction  of  the  Kankakee.  My  understanding  is  that  it  is  the 
Du  Page  River  and  tlie  Des  Plaines  River  that  form  the  Illi- 
nois river,  and  the  Kankakee  empties  into  the  Illinois  about 
two  miles  below  the  head  of  the  Illinois.  There  are  a great 
many  who  have  the  idea  that  that  is  on  the  Des  Plaines  River, 
but  the  old  Indians  that  were  roaming  around  here  in  1835 
have  always  said  it  was  the  Illinois  just  as  soon  as  the  waters 
of  the  Des  Plaines  and  Du  Page  come  together,  and  I think  it 
is  borne  out  in  Schoolcraft’s  stipulation,  and  one  thing  and 
another,  of  the  Mississippi  Valley.  I know  that  is  what  they 
always  said.  They  appeared  to  be  Indians  that  were  well 
informed.”  (Deposition,  John  McCowan,  Abst.,  p.  625.) 

PORTAGE. 

‘^Up  here  from  Summit  this  is  what  I have  seen.  The  river 
up  there  runs  both  ways  in  high  water.  Old  Ogden  up  there 
in  Chicago  dug  a ditch ; it  was  called  the  Ogden  ditch.  I sup- 
pose this  drainage  ditch  has  that  from  Bridgeport  down,  and 
he  dug  it  into  the  Des  Plaines  River.  That  brought  the  water' 
from  the  Des  Plaines  down,  and  the  state  made  him  ( Ogden ) 
put  a dam  in  there  because  the  high  water  would  run  it  right 
out  into  the  lake.  It  was  for  boats  going.”  (Deposition, 
Enos  Field,  Abst.,  p.  599.) 

‘‘Nine  miles  out  from  where  we  started  in  Chicago  it  was 
very  wet  and  muddy  and  the  water  was  on  the  prairie ; there 
were  no  roads  at  all.  Concerning  the  depth  of  the  water  that 
we  drove  through,  as  the  saying  is,  the  tires  and  fellies  of  the 
wagon  were  very  wet;  it  was  all  the  way  from  two  or  three 
inches  up  to  two  feet,  in  jhaces.  I cannot  say  how  far  up  the 


Dos  IMaiiios  Ilivor  went;  F don’t  know  today  liow  far  up  it 
i>’oes  toward "(drK'ago,  but  F know  the  Dos  Fdaines  Ftivor  and  the 
south  braneli  oi*  the  Clii(*-ago  Ftiver  eorne  together  in  high 
Avater.  Of  eourse  we  must  have  been  between  the  south  braneh 
of  the  Chicago  River  and  the  Des  Plaines.  The  condition  that 
I liave  described  existed  all  the  way  across  that  stretch  of 
seven  or  eight  or  nine  miles  that  I traveled  the  first  time.” 
(Deposition,  John  McGowan,  Abst.,  pp.  621-622.) 


CURRENT. 

^Mt  was  dead  water  half  the  way.”  (Deposition  of  Clement, 
Abst.,  p.  395.) 

‘‘Q.  At  'the  mouth  of  the  Des  Plaines  isn’t  the  current  yevy 
rapid,  boiling?  A.  I should  not  say  so  ; there  is  a good  heavy 
current  above  the  mouth. 

And  the  water  is  in  waves  from  the  rapid  declivity? 
A.  Unless  it  was  high  water  it  was  not,  but  since  the  drainage 
canal  turned  their  water  in,  why,  it  is. 

‘‘If  it  was  as  you  describe  it,  I would  have  smashed  a boat 
there,  and  I have  been  through  there  a thousand  times,  I gness, 
and  I never  smashed  a boat  there  yet.”  (Defendant’s  cross- 
examination  of  Arthur  C.  Clement,  Abst.,  p.  395.) 

“It  is  not  so  swift  but  what  a man  that  understood  handling 
a canoe  could  pole  up  against  it.  No,  a man  would  not  be 
capsized  even  if  he  was  not  skillful  in  handling  a boat,  but  he 
would  turn  around  and  go  back  toward  the  lake  again.  He  is 
apt  to  go  down  in  safety  in  high  water.  * * There  have 

been  times  when  you  would  have  to  get  out  and  pole  your  boat 
along  on  the  east  side  if  you  have  a load.  There  were  some 
rapids  about  600  or  700  feet  from  the  mouth.  It  was  swift 
there,  but  it  was  swifter  right  below  the  mouth  where  they 
used  to  have  the  old  darn.  * * * The  water  makes  waves 

now,  but  in  those  days  there  wasn’t  so  much  water  running 
down.  It  wasn’t  bad  getting  through.  We  used  to  bring  our 
boat  back  up  the  river.  We  would  get  out  and  pole  it  and 
pull  it.  It  was  not  difficult  or  tedious.  I did  not  use  to  think 
so.  Two  years  ago  last  summer,  the  summer  of  1905,  I was 
down  there.  The  drainage  water  was  in  the  river  then.  We 
put  our  boat  in  right  below  the  Kock  Island  railroad  bridge. 
I do  not  think  there  was  any  particular  hazard  to  a man  not 
skilled  in  handling  a boat  going  down  there.  I did  not  think 
there  was  any  particular  danger  until  you  struck  close  to  the 
mouth  of  the  river,  where  it  was  pretty  swift,  because  it  would 
suck  and  roll  the  boat.  I remember  we  took  five  or  six,  three 
of  them  women,  right  down  there.  There  were  three  men  and 
three  women  and  a little  child  in  the  boat.  We  pulled  it  over. 
We  came  back  up  the  canal.  Ft  was  too  much  woi*k  to  come 


))a('k  up  from  the  moutli.  1 liave  seen  men  eome  uj)  ])retty 
sti'ong  euri’ents.  I eouldn’t  do  it.  (Age  78.)  I have  been  on 
the  Missouri  for  two  years.  * * *■ 

The  ('urrent  is  sucli  that  no  eommerce  could  go  up 
the  river,  in  your  opinion,  is  that  so?” 

(Ohjection.) 

“A.  I sliould  not  think  so.”  (Deposition  of  (leorge  Al)- 
hott,  Ai)st.,  })]).  456-7-8.) 

“We  used  wliat  they  called  liip  boots,  tall  rubber  boots  that 
(‘ame  up  to  the  liips.  It  would  come  within  an  inch  and  a lialf 
or  iu'o  inches  of  going  over  the  tops  of  them  to  ford  there. 
Of  course  we  could  ford  it  over  all  the  time  that  T was  there 
hy  facing  up  against  the  stream.  If  you  turned  sideways  the 
current  on  tliose  riffles  there  would  take  you  off  your  feet.  I 
made  the  trip  only  once  that  time,  again  the  next  fall  and 
eiglit  or  ten  years  after  that  I used  to  make  the  trip  quite 
frequently  in  the  fall.  I never  made  over  one  trip  in  the 
spring  of  the  year.  We  usually  used  the  same  island  as  the 
camping  place.  I wore  the  hip  boots  and  usually  forded  the 
river  at  this  shallow  point.  It  would  never  freeze  over  the 
riffles.  It  would  vary  somewhat  of  course  after  short  rains, 
but  it  would  not  vary  very  much,  prohahly  four  or  five  inches. 
It  would  he  from  just  above  the  knee  clear  up  to  the  hip.  I 
iiave  seen  it  there  when  you  coudn’t  ford  it.  That  spring 
I couldn’t  ford  it;  it  was  too  deep.  I have  been  as  far  down 
as  the  aqueduct  quite  frequently.  'It  was  called  ^Dead  Man’s 
Hole’  down  there,  around  the  curve. 

“I  was  tipped  over  in  there  once  at  the  head  of  Treat’s 
Island,  what  they  call  Deep  Water.  I don’t  think  it  was  on 
account  of  the  current.  I guess  the  other  fellow  got  flounder- 
ing around  a little  bit  and  I lost  my  balance,  I guess,  and  went 
out,  that’s  all.  No,  the  current  was  not  swift  there.  On  the 
riffles  it  is  swift.  Our  fellows  always  got  up  and  down  with 
the  boat.  It  wasn’t  too  swift  to  take  a boat  up  or  down  with- 
out getting  out.  I never  done  much  with  the  boat  myself. 
^Ve  had  to  face  upstream  in  fording  the  river.  The  current 
was  so  swift  it  would  sweep  you  off  your  feet.  My  friend  was 
taken  off  his  feet  and  went  under,  gun  and  all.  I think  a 
boat  could  go  up,  a boatman  that  understands  running  them ; 
by  shooting  different  directions  he  could  get  through.  I ain’t 
anv  boatman.”  (Deposition  of  Daniel  W.  King,  Abst.,  pp. 
465-6.) 


BOULDERS. 

Boulders  in  three  shallow  places — about  3 or  4 inches  of  water 
over  the  top  and  about  2 feet  of  water  between  them. 

“From  Malcolm’s  dam  down  to  the  mouth  there  was  plenty 


ot‘  water  until  you  got  down  about  a halt*  inilo  this  si(J(‘  of 
l^raiidou’s  bridg’o.  ddiero  was  a shallow  })la('e  there  amongst 
the  boulders.  I.  had  no  trouble  in  running  a row  boat  ther-e, 
if  1 knew  where  to  go,  drawing  fifteen  inclies  of  water.  Tlieri 
you  liad  clear  sailing  if  you  knew  the  channel,  right  straight 
through  to  Treat’s  Island.  There  yo^i  took  the  left  hand 
channel  going  down,  that  is,  the  east  channel.  That  ivas  the 
deepest  channel.  About  one-third  of  the  way  down  the  island 
there  used  to  be  an  old  dam,  I think,  or  something.  There 
was  the  shallowest  place.  I have  grounded  there  a great 
many  times ; sometimes  I had  to  get  out  and  pull  it  over.  Gen- 
erally I could  pole  it  over. 

‘‘The  length  of  that  shallow  place  was  not,  I don’t  think, 
over  100  feet.  After  that  the  water  was  deep  until  about  the 
mouth  of  the  Du  Page  River.  There  you  had  to  know  the 
channel,  or  a boat  drawing  fifteen  inches  might  strike  bottom. 
Then  you  had  clean  sailing  until  just  below  the  aqueduct 
there  was  an  old  dam  used  to  be  there  and  you  passed  through 
a rather  narrow  channel  there.  Below  that  it  wms  all  boulders 
for  half  a mile  to  the  mouth.  If  you  dodged  the  boulders  you 
were  all  right.  If  you  did  not  you  would  come  to  grief. 
These  were  loose  boulders.  There  would  be  about  three  or  four 
inches  over  the  top  of  them,  maybe  two  feet  of  water-  between 
them.  The  boulders  were  about  three  feet  in  diameter,  a great 
many  of  them.  There  was  plenty  of  water  between  the  bould- 
ers if  you  could  dodge  them.  About  1885  I made  a trip  from 
here  to  a mile  below  the  junction  of  the  Kankakee  and  Des 
Plaines  Rivers  and  returned  on  the  canal  the  same  day,  mak- 
ing a trip  of  about  32  miles  from  eight  o’clock  in  the  morning 
until  ten  at  night.  That  was  probably  either  in  June  or  Sep- 
tember; there  was  no  trouble  on  the  water  that  trip.  1 made 
two  carries,  one  from  the  canal  into  the  river,  one  from  the 
Illinois  River  into  the  canal.  We  did  not  have  to  pole  at  all 
that  trip.  The  boat  loaded  as  it  was  drew  between  twelve  and 
fifteen  inches.  We  put  in  opposite  the  oatmeal  mill,  about 
three-quarters  of  a mile  below  Jefferson  street. 

“At  that  time  a boat  drawing  two  feet  of  water  would  find 
the  river  navigable  in  the  condition  it  then  was. 

“If  the  loose  boulders  were  removed  and  the  hundred  feet 
of  shallow\s  were  excavated  at  Treat’s  Island,  and  the  boulders 
at  the  mouth  and  at  Brandon’s  bridge  were  removed,  I could 
run  a boat  carrying  three  feet  of  water  on  that.  I ])resnme  in 
the  neighborhood  of  three-quarters  of  a mile,  taking  all  these 
three  together,  would  have  to  be  (‘leared  out  before  you  could 
get  through  drawing  three  feet  of  water.’’  (Deposition  of 
Arthur  C.  Clement,  Abst.,  p]).  392-3.) 

“There  were  (phte  a number  of  boulders  scattered  around 
in  the  bed  of  the  river.  The  boulders  would  be  two  feet  or 
more  in  diameter  and  from  that  smaller;  the  largest  ones 


would  show  the  tops  al)ove  the  water.  We  had  no  difficulty 
anywhere  else  in  getting  through.  There  was  some  difficulty 
there  because  tlie  boulders  were  pretty  thick  and  it  was  dif- 
ficult to  run  a boat  through  in  the  swift  running  water.” 
(Deposition  of  Henry  H.  Pohl,  Abst.,  p.  444.) 

“I  have  taken  skiffs  up  and  down  a great  many  times;  I 
always  got  out  and  lifted  it  over  the  riffies.  The  riffies  were 
very  shallow  most  all  the  way  from  the  head  of  the  island  to 
the  foot.  There  were  spots  we  did  not  have  to  take  the  boat 
up  and  down  over  them  that  distance.  There  were  spots 
where  the  boat  would  run  along  and  then  in  spots  there  would 
be  a deep  place  right  along  and  you  would  get  in  until  you 
would  come  to  a riffle  and  get  out  again.  The  boats  I used  on 
the  river  were  the  ordinary  skiffs.  There  was  a pretty  strong 
current  below  the  oatmeal  mill  and  a good  many  boulders.  In 
that  strong  current  and  boulders  it  would  be  hazardous  in  low 
water  unless  it  was  daylight.  There  were  boulders  that  would 
come  up  close  to  the  top  of  the  water,  but  a man  that  was  used 
to  the  stream  could  tell  where  they  were.  It  was  not  hazard- 
ous to  go  down  there  in  high  water  if  you  kept  the  channel. 
It  is  not  so  swift  but  what  a man  that  understood  handling  a 
canoe  could  pole  up  against  it.”  (Deposition  of  George  Ab- 
bott, Abst.,  p.  456.) 

‘ ‘ I have  seen  that  kind  of  a thing  in  places  where  the  water 
was  2 feet  deep.  It  would  be  where  you  had  rocks  and  gravel. 
If  there  was  rocks  piled  up  and  the  water  two  feet  deep,  it 
might  be  a lot  of  little  rocks  and  gravel.  I mean  to  say  that 
in  the  Des  Plaines  Eiver  gravel  and  rock  were  piled  up  by 
nature,  washed  there,  so  that  they  would  constitute  a riffle. 
The  water  runs  through  pretty  deep  sometimes.”  (Deposi- 
tion of  Lewis  K.  Stevens,  for  Defendant,  Abst.,  p.  557.) 

^Hf  a boat  were  going  down  the  Des  Plaines  River  in  times 
of  high  water,  it  would  be  likely  to  strike  one  of  these  hard 
heads.  All  you  can  see  of  them  when  it  is  high  water  is  a kind 
of  a little  riffle  or  current  around  them.  I often  went  down 
the  Des  Plaines  River  in  times  of  high  water  from  Malcolm 
mill.  I went  in  a small  boat,  but  I would  go  down  backwards, 
so  as  to  avoid  those  hard  heads.  I would  sit  right  where  I 
rowed  from  and  turn  my  boat  around,  turning  the  bow  down- 
wards— backwards,  and  row  backwards.  I would  not  row,  I 
would  let  her  go  down  with  the  current  and  avoid  those 
stones.”  (Deposition  of  Peter  O’Brien,  for  Defendant,  Abst., 

p.  611.) 


BOULDERS. 

‘L\s  to  whether  there  was  sufficient  water  to  float  these  logs 
at  all  times  I could  not  say.  It  is  like  any  river,  yon  know, 
that  is  piled  up  tvith  stones. 

‘‘There  were  places  there  the  stones  would  be  piled  up  in 


:J5{) 

the  siiininer  time,  pi'obably  not  as  deep  as  the  table,  af)oiit  two 
feet  and  a half;  that  is,  on  these  riffles,  of  eoiirse.  Tliere 
were  holes  that  would  take  you  over  your  head,  five  or  six  feet 
deep,  seooped  out,  you  know.  There  were  plaees  that  were 
deeper,  and  the  stones  were  washed^  and  that  would  make  it 
shallow,  after  the  ordinary  depth  of  water  at  those  ydaees.  As 
1 grew  up  in  years,  that  was  all  the  way  I could  judge  from, 
that  there  would  be  probably  from  eighteen  inches  to  two  feet 
or  two  and  a half  feet  where  we  would  want  to  cross.’’  (De- 
position of  Samuel  Gatons,  Defendant’s  Witness,  Abst.,  pp. 
484-5.)  In  the  Des  Plaines  River  gravel  and  rock  were  piled 
up  by  nature,  ivashed  there,  so  they  would  constitute  a riffle. 

(Deft’s  witness,  L.  K.  Stevens,  Abst.,  p.  557.) 

{The  stones  were  trashed;  i.  e.,  they  lay  loose  on  the  bottom 
and  were  brought  down  by  ice  and  later  washed  still  further 
down.  They  were  not  permanent.) 

‘‘I  don’t  remember  that  I ever  saw  the  river  at  a lower  stage 
than  two  feet,  at  its  lowest  stage.  I was  very  frequently  in 
the  river  wading  it  and  swimming  it;  and  along  the  banks  of 
the  river  as  far  as  Channahon.  I forded  the  river  a good 
many  times. 

‘G  was  better  ac(piainted  with  the  river  before  the  canal  was 
opened  than  after.  I am  pretty  sure  in  regard  to  the  depth  of 
the  water,  because  I was  in  the  river  more  or  less  })retty  well 
down.  Rafts  and  boats  of  various  kinds  had  no  difficulty  in 
moving  uj)  and  down  the  river.”  ( De])osition,  Jolm  W.  l^iv- 
lor,  Abst.,  pp.  488-9.) 

“It  must  have  been  about  1844  that  that  man  down  the 
river  who  had  the  sawmill  hired  me  and  my  father  to  tie  u])  a 
lot  of  logs.  AVe  hauled  them  out  on  the  river  on  the  ice,  in 
order  to  fasten  them  'together  on  the  ice;  then  when  the  ice 
went  away  we  ran  the  raft  down  to  Treat’s  mill.  That  was 
on  the  south  corner  of  Mount  Flathead.  Rock  Run  runs  right 
into  the  river  on  the  north  side;  I should  judge  it  was  about 
two  miles,  or  two  and  a half,  above  Treat’s  mill.  AVe  hauled 
the  logs  together  and  laid  them  side  by  side  and  fastened  them 
together  and  made  a raft.  There  must  have  been  about  50 
logs,  I guess.  Some  were  3 and  some  were  34  feet  thick. 
AVhen  we  took  the  logs  down,  the  water  in  the  river  might  have 
been  7 or  8 feet  deep.  That  was  mostly  in  the  fall  and 
through  the  winter.  When  we  had  done  with  the  farm  we 
would  go  to  the  woods  and  haul  wood  and  logs.  AVe  crossed 
the  river  at  Brandon’s  bridge.  Sometimes  the  water  was 
about  knee  deep,  I mean  a foot  and  a half  or  15  inches.  It 
must  have  been  40  or  45  feet  across. 

“T  saw  boats  in  Joliet  going  down  the  river  at  the  old  mill, 
where  they  changed  routes;  four  or  five  young  men  in  the 


boats,  with  tents,  trunks  and  })()xes,  wliere  they  liad'  provisions 
and  guns.  The  boat  must  have  })een  af)ont  20  feet,  maybe  22, 
from  one  end  to  the  other,  on  top,  and  about  4 feet  wide.  I 
don’t  know  how  much  (rater  it  n:ould  take  to  carry  a boat  2)0 
feet  long  and  10  feet  wide,  with  five  tons  on  it.  I was  fishing 
on  the  river  down  at  Brandon’s  bridge,  and  wlien  I got  on  the 
rihles  I could  hardly  go  with  two  in  tlie  boat.  That  was  in  tlie 
spring  of  tiie  year,  al)out  April,  |)loughing  time.  The  boats  I 
sair  came  from  Chicarjo,  they  said;  they  went  down  the  river; 
I couldn’t  tell  you  how  far  they  went.  I could  tell  you  pretty 
near  what  year  that  was ; that  was  in  1840. 

“I  crossed  at  Treat’s  Island  in  threshing  time,  in  Sep- 
tember; took  a threshing  machine  across.  That  was  in  1842. 
They  had  threshing  machines  here  in  1842 ; just  a thresher 
and  three  men  with  a rake  and  fork  to  get  the  straw.  It  was 
on  a wagon.  We  had  a common  wagon;  tliey  were  laid  on 
and  hauled  it  across  that  way.  The  water  might  have  been  15 
inches.  That  was  about  in  September ; August  is  most  too 
early  to  thresh;  I think  it  was  in  September.”  (Deposition, 
Xavier  Munch,  Abst.,  pp.  542-3-4.) 

‘M  am  familiar  with  it  as  far  as  Haven’s  dam  thoroughly, 
but  I would  not  say  I was  familiar  with  it  from  there  down  to 
Treat’s.  In  the  summer  months  it  was  very  dry;  at  other 
times  there  was  plenty  of  water;  in  the  early  part  of  the  year 
there  was  plenty  of  water,  but  there  was  a great  deal  of  dry 
time. 

‘H  was  able  to  wade  this  river  at  different  times;  as  a gen- 
eral thing  the  water  was  about  18  inches  then,  and  you  would 
run  across  a hole  about  15  feet  deep;  there  I would  not  try  to 
wade  it.  When  I said  that  this  river  was  not  navigable  and  is 
not  today,  I meant  that  there  is  not  five  or  six  feet  of  water  in 
it.  There  is  at  places.  I would  not  like  to  consider  a river 
navigable  unless  it  had  four  or  five  feet  of  water;  that  is  what 
I mean  when  I say  the  river  is  not  navigal3le.  When  the  water 
was  very  low  in  the  river  it  would  run  from  a foot  and  a half 
to  two  feet.”  (Deposition,  James  Boyne,  Defendant’s  Wit- 
ness, Abst.  pp.  546-7). 

DAMS  AT  treat’s  ISLAND  AND  BEARD ’s  DAM. 

‘^Xohody  told  me  about  the  dam  at  the  mouth  of  the  Des 
Plaines  llivei’.  There  was  not  a dame  there.  That  was  iii 
1834  and  1835. 

‘‘The  savunill  at  Treat’s  Island  was  commenced  in  1836 
and  finished  in  1837.  The  grist  mill  was  built  shortly  after- 
wards. I got  that  information  from  parties  who  knew.  The 
Jesups  told  me  that  after  the  sawmill  was  built  at  Treat’s 
Island  they  didn’t  have  to  go  far  for  their  lumber. 

“When  I first  came  here  in  1855,  I saw  the  end  of  an  old 


(lain  on  ilu'  !)(‘s  INainos  River  there  at  tlu^  nionlli;  I ruiver 
heard  of  a dam  there  except  one  that  was  hiiilt  in  tli(‘  fall  and 
went  out  the  next  spring,  ddiat  is  a historical  fact.  I never 
could  find  out  that  there  was  any  dam  there  that  amount(*d  to 
anything-  and  lasted  long.  There  are  some  of  tlie  boulders 
of  the  foundation  there  still.  I have  seen  it  many  times.  I 
don’t  recollect  much  about  it.  I recollect  some  logs  sticking 
into  the  bank  on  the  north  side  of  the  river  and  some  boulders 
lying  on  the  logs.  That  was  probably  Mty  years  ago.  It  was  a 
little  ways  up,  might  have  been  a hundred  rods  or  a half  mile 
from  the  mouth;  it  was  between  the  aqueduct  and  the  mouth. 
(Deposition,  Wni;  W.  Stevens,  Abst.  pp.  415-416). 

“He  dug  a dam  across  the  Des  Plaines  a little  above  its 
junction  with  the  Kankakee  (which  forms  the  Illinois),  and 
commenced  building  a mill.  But  the  next  spring  the  Kankakee, 
which  drains  a great  extent  of  country  far  to  the  east  in 
Indiana,  got  on  a rampage  long  before  the  Des  Plaines,  which 
rises  much  farther  in  the  north,  and  coming  down  with  its 
great  volume  of  water  and  ice,  dammed  up  the  Des  Plaines — 
turned  its- current  northward,  and  sent  Johnny  Beard’s  dam, 
city,  mill  and  all,  a kiting  up  to  Treat’s  Island,  where  it  de- 
posited the  fragments.  This  wms  the  last  we  heard  of  ‘Kan- 
kakee City,’  until  some  of  our  citizens  ‘struck  ile’  there  a 
few  years  since  and  sunk  a well, — and  sunk  a little  pile  of 
money  too.”  (Extract,  Woodruff’s  History  of  Will  County, 
Deposition,  Wm.  W.  Stevens,  Abst.  pp.  405-406). 

‘‘That  dam  must  have  been  put  in  in  1886.  There  was  a 
man  here  by  the  name  of  Beard,  two  of  them.  They  laid 
out  a town  there,  and  the  old  man  and  his  wife  died  the  same 
day  in  1847,  but  they  have  a nephew  that  is  out  in  Michigan 
here;  he  ivas  telling  me  about  this.  I don’t  know  what  the 
mill  was.  There  was  nothing  ])ut  a flume  there  when  I com- 
menced boating  in  1854,  but  the  old  dam  is  there,  jmrt  of  it. 
The  appearance  of  that  old  dam  was  there  in  ’54.”  (Depo- 
sition of  Defendant’s  Witness,  Enos  Eield,  Al)st.  })]).  599-600). 

“We  used  to  ford  the  river  down  at  the  Kankakee  where 
father  lived,  just  below  the  aqueduct,  down  where  Beard’s 
dam  was.  His  farm  was  on  the  west  side  of  the  river,  down 
near  Beard’s  dam.  That  was  not  when  I first  came  to  this 
})art  of  the  country.  Father  lived  here  over  twenty  years 
before  we  went  down  there.  There  was  a ])lace  there  that 
we  always  called  Beard’s  dam,  the  boys  that  were  younger 
than  I;  I have  been  there  with  them  fishing.  They  would 
say,  ‘Let’s  go  down  to  the  dam.’  There  was  part  of  the  old 
timbers  sticking  out  of  the  water.  There  wars  no  remnant 
of  an  old  mill  that  I ever  saw.  I do  not  know  when  I was 
first  down  there  where  Beard’s  dam  wais;  I could  not  tell. 
I commenced  boating  down  there  along  in  the  60 ’s.”  (Depo- 
sition, Urias  Bowsers,  Abst.  p.  604). 


362 


NORMAN  DAM. 

“ Molin  Norman  ])nilt  a mill  on  this  river’ — the  reference 
is  to  tlie  Des  Plaines  River — ‘at  the  head  of  an  island  which 
took  his  name,  just  above  the  penitentiary.  Pie  built  a dam 
across  one  branch,  which  tlirew  the  current  into  the  other 
end,  in  which  he  placed  his  wheel,  while  the  shaft  at  the  other 
connected  with  the  mill  gearing  in  a log  mill.’  I remember 
visiting  this  mill  in  1834.”  (PPxtract,  Woodruff’s  History  of 
Will  County,  p.  14,  Deposition,  Wm.  W.  Stevens,  Ahst.  p.  406.) 

“John  Norman  erected  the  first  flouring  mjill  in  Joliet 
* * * * About  opposite  the  penitentiary  there  was  an 

island  in  the  Des  Plaines  heavily  wooded,  a romantic  spot 
where  the  writer  often  went  in  search  of  flowers.  At  the  head 
of  the  island,  across  one  channel,  Norman  built  a brush  and 
gravel  dam,  which  threw  the  current  strong  on  the  other  side. 
Near  this  he  built  a log  mill.  His  wheel  was  placed  in  the 
current  and  the  shaft  running  into  the  mill  turned  the  ma- 
chinery which  ground  the  grain.”  (Extract,  Woodruff’s 
History  of  Will  County,  p.  251,  Deposition,  Wm.  W.  Stevens, 
Abst.  p.  411). 


DAMS. 

“I  remember  dams  in  the  river  when  I was  a young  boy. 
I do  not  think  that  I know  of  any  prior  to  1848,  before  the 
completion  of  the  Illinois  and  Michigan  Canal,  but  there  is  a 
dam  right  near  Mr.  Mills.  (Treat’s  Island). 

beard’s. 

“There  was  a dam  kind  of  west  of  where  the  Economy  is 
now  constructing  a dam;  the  dam  they  ran  their  mill  with. 
I saw  that  dam  over  there,  across,  below  it.  That  extended 
clear  across  the  river.  There  were  not  any  locks  in  that  dam. 
They  had  a race  there  so  they  could  get  power  for  the  mill. 
It  was  a closed  dam  all  the  way  across. 

“I  do  not  remember  when  it  was  built.  I would  not  say  that 
I remembered  the  existence  of  that  dam  prior  to  1848.  I do 
not  remember  whether  it  was  there  before  1848  or  not.  I 
was  born  in  1837.  In  1848  I was  11  years  old. 

“I  remember  the  dam  that  was  on  the  north  branch  of 
Treat’s  Island.  They  had  a race  right  across  there  that  ran 
into  the  mill  there.  That  was  on  the  north  channel.  That  was 
pretty  much  a closed  dam  clear  across  the  channel.  It  was  not 
a very  big  dam.  There  was  no  provision  for  any  boats  to 
go  through  there.” 

* * * * 

“I  do  not  remember  any  other  dam  in  the  river  ]n*ior  to 
1848,  besides  the  Beard’s  dam  and  Treat’s  Island  dam.” 


•> 

• > 


g; 


) 


(1\\stiiiu)nv,  (Jooi-^-e  Aloxander,  Dc'l'ondarit’s  Witness,  i\hst. 
p.  511). 

“Prior  to  1848  there  was  a dam  in  the  river  here  at  Jeffer- 
son street  in  ffoliet.  The  old  Malcolm  dam  down  below  here 
remained  there  until  the  Drainage  Canal  took  it  out,  bought  it 
of  Adam  and  took  it  away.  That  is  the  dam  that  is  spoken 
of  as  the  Haven  dam.  I guess  it  is  just  south  of  tlie  city 
limits  of  Joliet. 

“There  was  a mill  at  that  dam.  There  was  another  dam  at 
Lockport  just  west  of  there.  The  Norman  dam  was  this  side 
of  there.  That  was  the  old  Daggett  dam.  Daggett  got  it 
afterwards.  It  was  Norton’s  mills.  The  Norman  dam  w^as 
situated  on. the  property  Father  and  Goodspeed  got  of  Norton 
afterwards.  The  Norman  dam  was  in  the  township  of  Lock- 
port,  about  a mile  above  the  prison,  on  what  was  the  old 
Sanger  farm.  They  were  all  in  the  river  before  1848.  (Testi- 
mony, Lewis  K.  Stevens,  Defendant’s  W^itness,  Abst.  pp. 
550-1). 

Several  of  defendant’s  witnesses  testified  to  fences  in  the  river. 
On  cross-examination  several  of  them  explained  that  they  re- 
ferred to  fences  extending  partly  into  the  river  to  keep  the  cattle 
from  trespassing,  but  not  across  {e.  g.,  Defendant’s  witnesses,  L. 
K.  Stevens,  Abst.,  p.  552;  ^Alexander,  Abst.,  p.  514;  Whlliams, 
Abst.,  pp.  525-8;  Gurney,  Abst.,  p.  5J4.  Defendant’s  witness 
Adler  said: 

“I  do  not  recollect  any  fence  built  across  the  Des  Plaines 
when  I was  a boy.  * * * j put  a fence  across  just  a little 

above  Brandon’s  Bridge  * * * some  time  in  1800  or 

1866.”  (Abst.,  p.  565.) 

Adler’s  fence  was  thus  described  by  Frhard  (Abst.,  p.  163)  : 

“I  remember  that  my  brother-in-law,  Jacob  Adler,  of  Jo- 
liet, fenced  a pasture  across  the  river  and  was  com])elled  to 
put  gates  across  the  Des  Plaines  just  below  the  city  limits 
of  Joliet,  and  that  in  erecting  such  fence  he  was  required  to 
and  did  put  in  a swinging  gate  in  order  to  let  the  boats  and 
rafts  go  up  and  down  the  river.  The  river  at  that  time  was 
regarded  as  a navigable  stream  and  used  for  such  pur])oses, 
and  for  that  reason  he  was  recpiired  to  use  swinging  gates  so 
that  the  boats  could  go  up  and  down  the  river.” 

Hicks  testified  to  the  same  (Abst.,  p.  438)  : 

DESCRIPTION  OF  EARLY  DAMS. 

“The  dam  (at  Treat’s  Island,  1837)  was  built  of  logs,  a 
log  placed  here  and  there  and  then  slabs  put  back  and  stones 


piled  up  ou  the  bottom  of  those  sla})s.  They  used  some  of 
those  l)oulders.”  (Ev.  of  Mills,  Ahst.,  p.  lOdG.) 

“I  think  this  dam  was  ])ut  iu  in  the  same  way  as  the  other, 
with  slabs  put  on  it  and  scraped  up  underneath  and  jmt  on 
top.  The  water  used  to  pour  over  tlie  remnant  of  the  darn 
most  of  tile  time.  * * * The  dam  was  gradually  washed 

away  until  just  the  riffles  wei*e  left.”  (Ev.  of  Eornelius, 
Ahst.,  pp.  1042-3.) 

FENCES. 

‘^The  eai'liest  wire  fence  that  f recollect  about  is  1845. 
Entil  long  after  1845,  as  a general  thing  there  was  no  wire  to 
be  used  for  fence  or  otherwise.  Whatever  was  of  wire  at  an 
earlier  date,  was  made  by  a home  blacksmith,  or  something 
of  that  kind,  and  strung  across  the  stream.  Rods  were 
stretched  across,  and  swung  on  what  was  a swinging  gate; 
tliey  were  usually  small  rods,  almost  approaching  wire.” 
(Deposition  of  Defendant’s  Witness,  Franklin  Collins,  Ahst. 

p.  616). 


DEPTH. 

That  was  42  feet  deep  in  high  water.  That  was  before  the  open- 
ing of  the  deep  cut.  (Deposition,  George  Abbott,  Ahst.  p.  455). 

“I  remember  that  just  before  the  Chicago  tire,  there  was  a 
cutting  made  that  opened  the  Chicago  river  into  the  canal. 
They  turned  in  a lot  of  sediment  and  dirt  and  killed  off  every 
living  thing  in  the  lake.  I have  been  down  there  when  it 
looked  as  though  you  could  walk  right  off  on  the  water  for 
an  acre  with  nothing  but  dead  fish,  because  it  caused  the 
sediment  and  mud  to  accumulate  in  the  lake.  (Id.  p.  455). 

There  used  to  be  a ford  just  above  Smith’s  bridge.  I have 
crossed  it  with  a buggy.  If  you  knew  the  track  the  water  would 
just  about  come  up  to  the  bottom  of  the  buggy — sometimes,  come 
in.  We  had  to  keep  at  the  shallowest  point  to  keep  the  irater  from 
coining  into  the  buggy.  In  low  water  in  the  summer  season,  I 
have  been  across  there  when  it  did  not  come  in.  There  was  a 
pond  at  Joe’s  Island  where  you  could  cross  when  the  water  was 
low.  (Id.  455). 

^‘Q.  When  you  were  down  there  the  depths  of  water  were 
such  it  could  not  float  any  commerce?  A.  Well,  take  it  be- 
tween Treat’s  Island  and  Patterson’ s Island,  it  ran  all  the 
way  from  three  or  four  feet,  but  it  is  as  deep  as  42  feet.” 
(Deposition,  George  Abbott,  Abst.  ]).  458). 

‘‘Where  I crossed  there  was  a pretty  swift  current,  l)ut  I 
would  not  say  there  was  much  riffles  there.  The  rapids  were 


riirtlu'r  up  the  sireaiu;  it  was  at  a places  wli(u-(i  llu^  wat(u-  was 
running’  (inito  rapidly.  It  must  have  been  a shallow  part 
where  this  ford  was,  heeanse  we  went  through  there  with 
wagons  very  often.  It  would  not  more  tlian  cover  front  hubs.” 
(Deposition,  dolin  McCowan,  Abst.  p.  ()22). 

“ Where  I ci’ossed  there  was  a pretty  swift  current,  })nt  I 
would  not  say  there  was  much  riffles  there.  The  ra[)ids  were 
further  upstream;  it  was  at  a place  wliere  the  water  was 
lamning  (]nite  rapidly.  It  must  liave  ])een  a shallow  ])ai‘t 
where  this  ford  was,  because  we  went  througli  there  witli 
wagons  very  often.  It  would  not  more  than  cover  front  liubs. 
I don’t  know  the  difference  between  deep  and  shallow  at  that 
time.”  (Deposition,  Jolm  McCowan,  Defendant’s  Witness, 
Abst.  p.  622). 

Tlie  head  of  Treat’s  Island  is  (I  have  been  thro’  there  200 
times)  the  shallowest  place  we  could  go  with  a boat  dravring  18 
inches  of  water.  (Deposition,  George  Albert  Parrent,  Abst.  p. 
448). 

“I  am  sixty-five  years  old.  Live  in  Joliet,  and  have  lived  in 
Will  County  since  1853.  Have  been  acquainted  with  the  Des 
Plaines  River  continuously  since  that  time.  Have  gone  up  it 
in  boats.  My  last  boat  was  19  feet,  10  inches  long,  17  feet  on 
the  water  line,  5 foot  beam.  It  had  a 3-inch  keel  on  the  outside 
and  it  had  a sail.  I have  carried  1,500  pounds  of  luggage,  two 
men  at  200  pounds  apiece  (they  would  weigh  that  or  more) 
and  a couple  of  hundred  pounds  of  decoy  ducks.  I would  go 
down  twice  a year,  in  the  spring  and  again  in  the  fall.  Prom 
the  early  use  in  the  spring  to  the  latest  use  in  the  fall,  it  would 
be  about  five  or  six  months  between.  At  the  head  of  Treat’s 
Island,  was  the  shallowest  i)laces.  1 have  been  through  there 
two  hundred  times.  We  used  to  go  pretty  often.  I have  gone 
down  there  when  the  water  at  the  head  of  Treat’s  Island  was 
four  feet  deep  on  the  riffles.  At  the  shalloivest  place  lee  could 
go  up  there  with  a hoot  drawing  eighteen  inches  of  water. 
I once  loaned  two  boats  to  a man  on  tlie  island  to  haul  his  hag 
off  the  island.  I had  two  boats  there  14  feet  long;  they  were 
27  inches  wide  on  the  bottom  and  44  on  the  top.  He  put  the 
two  boats  together  and  took  a big  load  of  hay  off  the  island 
there.”  (Id,  448). 

“I  swam  horses  through  every  mile  from  Lockport  to  the 
mouth  to  the  Illinois  River,  where  the  Des  Plaines  and  Kan- 
kakee go  together — ^pretty  near  every  mile  to  cross  the  river. 

“Prior  to  1848  the  })eople  had  to  go  across  the  river  the 
best  way  they  could.  Some  places  they  could  ford  it,  and 
when  they  could  not,  they  went  over  in  boats. 

“There  was  not  any  bridge  in  Joliet,  until  you  struck  Mor- 
1‘is,  and  the  bridge  at  Morris  was  over  the  Illinois  river. 


366 


‘M>(‘t\voeii  Joliet  and  the  niontli.  I liave  forded  tlie  river 
))rior  to  184S.  1 drove  a hundred  head  of  eattle  across  and 

swam  the  liorses  after  them. 

“Prior  to  1848,  before  any  bridges  were  constructed,  there 
was  a ford  down  where  Brandon’s  bridge  is.  It  was  not  a very 
good  one,  it  was  not  a very  safe  ford,  as  you  could  ford  it 
there  at  Treat’s  Island;  go  across  the  south  branch,  and  go 
across  the  island  and  ford  the  north  branch,  and  then  they 
used  to  ford  across  where  the  DuPage  runs  into  this  branch. 

“ We  used  to  go  in  a boat  at  night  and  catch  a lot  of  fish, 
at  the  places  where  we  found  the  depth  of  the  water  varied  a 
good  deal,  some  places  a foot  and  a half  and  some  places  six 
feet.  I can’t  say  that  I know  how  deep  the  water  has  got  to 
be  in  order  to  get  navigation  for  commercial  purposes.  I know 
it  depends  a little  on  the  size  of  your  vessel,  and  how  you  load 
it.  It  has  to  be  6 or  7 feet  on  the  Mississippi  River.  I shipped 
down  there  to  St.  Louis  and  Memphis  and  Cairo.  It  is  my 
opinion  that  in  order  for  the  stream  to  be  navigable  for  com- 
Jiiercial  purposes,  the  water  must  be  6 or  7 feet  deep. 

“Three  months  it  would  be  so  shallow  that  you  could  wade 
across  it  with  your  boots  on,  a little  more  than  a foot.  There 
would  be  spots  in  there,  maybe  a foot  and  a half  deep.  The 
current  always  drifted  to  the  south  side  of  the  river,  that  was 
the  deepest  channel.  I should  think  there  in  the  deepest  part 
of  it,  at  all  times  of  the  year,  there  was  as  much  as  18  inches 
of  water  in  the  channel  at  that  rapids  opposite  that  place.  I 
think  the  channel  would  be  pretty  near  40  feet  wide  there.  The 
north  side  of  the  river  sloped  off,  it  is  smoother,  goes  out 
gradually.  At  the  lowest  stage  of  water,  at  the  rapids  at  my 
place,  on  my  side  of  the  river,  there  was  a channel  about  40 
feet  wide,  with  an  average  depth  of  18  inches^  somewhere  along 
about  that.  Down  at  Whitemore’s  bridge,  it  was  a little 
deeper  than  at  my  place,  two  or  three  feet,  or  two  and  one  half. 

“On  the  south  branch  the  water  would  be  as  deep  as  2 feet 
for  four  or  five  months  of  the  year,  this  was  before  1848,  but 

1 guess  the  north  branch  would  not  go  that  depth.  The  chan- 
nel in  the  south  branch  would  be  40  feet.  I think  prior  to 
1848,  there  was  a channel  in  the  south  branch  of  the  rapids 
at  Treat’s  Island,  40  feet  wide,  and  containing  as  much  as 

2 feet  of  water,  for  a period  of  five  months  of  the  year.  (Depo- 
sition, George  Alexander,  Defendant’s  Witness,  pp.  507,  512, 
516,  518  and  519). 

“As  to  whether  it  is  possible  for  a row  boat  to  come  up 
Dcs  Plaines  River  in  any  season  of  the  year,  from  the  mouth 
of  the  river  to  Malcolm’s  mill,  sometimes  you  would  have  a 
good  deal  of  poling  and  avoiding  of  these  big  hard  heads,  to 
get  up  when  there  was  any  kind  of  a current.  They  poled  up 


:u\7 

small  boats  I'rom  1l!(‘  moiilli  ol’  tli(‘  I)(is  PlaiiKiS  liivco-  to 
Malcolm’s  mill,  ^blicy  poled  up  and  worked  with  the  oars. 
(Deposition.  Detei'  O’Id-ien,  Delendani’s  AVitness,  Atisl.  p. 
(HO). 

“1  think  it  was  prior  to  1840  that  I forded  the  river  at 
Loek})ort;  t tliink  it  was  in  1841,  or  ’42,  somewhere;  \ could 
not  tell  positively.  I would  not  pretend  to  be  accurate  as  to 
three  or  four  years  of  a time  there  when  it  might  have  beeii. 
I forded  it  in  company  with  my  father,  with  a team  of  horses. 
I think  in  the  deepest  place,  it  was  about  2 feet  deep.  I think 
I have  a clear  and  distinct  recollection  today  as  to  how  deep 
it  was.  I think  there  was  a regular  drag  across ; it  might  have 
been  a riffle;  I could  not  say  as  to  that.  The  place  selected  foi* 
fording  wmuld  most  likely  be  in  the  shallowest  parts  of  the 
river;  I don’t  remember  whether  it  was  or  not;  generally  the 
fords  of  the  river  were  on  the  riffles.  During  the  next  eight 
or  ten  years,  I usually  crossed  the  river  two  or  three  times 
a year;  that  would  be  in  the  summer  time,  at  the  low  stage  of 
the  water.”  (Deposition,  Franklin  Collins,  Defendant’s  Wit- 
ness, pp.  615-616). 

‘‘The  depth  of  the  water  in  the  river  in  ordinary  times, 
excluding  the  time  of  extreme  freshets  or  floods,  was  rather 
slim  for  navigation  purposes.  That  would  be  my  opinion.  I 
can’t  see  how  boats  could  navigate  it  at  that  stage. 

“I  boated  on  this  canal  a little.  Four  feet  of  water  was 
all  that  our  boats  would  draw,  and  go  aground  at  that.  I 
should  say  4 feet  of  water,  according  to  my  experience,  was 
necessary  in  order  that  profitable  commercial  navigation  could 
be  had.  And  when  I said  the  water  was  rather  slim  in  this 
river  for  navigation  purposes,  I had  in  mind  that  there  ought 
to  be  4 feet  of  water.”  (Deposition,  R.  W.  Killmer,  Defend- 
ant’s Witness,  pp.  626-7). 

Have  found  18  inches  to  2 feet  of  water  in  the  fall  of  the  year. 
(Deposition  of  Wm.  W.  Stevens,  Abst.  p.  411). 

Mr.  James  R.  Flanders,  62  years  old  in  1908;  used  river  all  life. 
Exclusive  of  deep  holes  in  Lake  Joliet  and  extreme  shallows  at 
Treat’s  Island,  depth  would  be  3 to  4 feet.  (Abst.  p.  429). 

Heydecker — (on  the  Upper  Des  Plaines),  Abst.  206,  summer 
average  2-1  to  3 feet;  fall  average  2 to  21  feet. 

At  the  fords  there  might  be  places  where  you  could  get  across 
without  any  water  at  all  (215),  some  of  the  fords. 

Lorimer^ — 41  to  15  feet,  except  at  rapids  at  mouth,  wfliere  it  is  no 
less  than  3 feet,  and  rapids  at  Treat’s  Island,  where  it  is  not  less 
than  2 feet.  (Abst.  p.  196). 


FKET  WET  AND  DRY  SHOD. 


(/I'oss  witlioiit  wettiiiii^  1‘eet  abovo  Ijoekport,  below  tbe  Norton 
nil : 

“Before  the  time  the  Sanitary  (vVxnal  was  liuilt,  it  was  a 
good  (leal  shallower  than  it  is  now.  Lots  of  riffles  we  could 
cross  u])  above  Lockport  during  the  summer  season  without 
getting  our  feet  wet. 

“I  don’t  know  of  any  dams  in  tlie  river  above  Lockport  or 
at  Lockport. 

“Q.  Did  you  know  of  the  Daggett  mill  at  Lockport? 

(Objected  to  b}^  counsel  for  complainant  as  suggestive  and 
savoring  of  cross-examination). 

“A.  Why,  certainly.  AVe  used  to  take  our  flour  down 
there;  take  our  wlieat  down  there  to  get  it  ground. 

“It  was  that  Alill  then.  Dr.  John  F.  Daggett. 

“They  liad  water-power  there.  Tlie  water  tliat  they  used 
there  to  run  that  mill  looked  to  me  as  if  it  was  alv^mys  coming 
out  of  the  canal  from  Norton’s  mill.  The  water  from  the  mill 
that  he  had  in  Lock|)ort,  right  down  there,  and  they  had  a race. 

“It  was  lowest  along  in  the  fall,  July,  August  and  Septein- 
her.  It  would  not  be  very  deep  on  the  riffles  in  the  winter,  or 
when  the  ice  was  formed,  a couple  of  feet.  I think,  if  I recol- 
lect, the  riffles  were  ordinarily  the  shallowest  places.  The  way 
it  was,  the  shallowest  places  would  be  supposed  to  be  right 
here  (indicating),  there  would  be  a place,  probably  reaching 
so  (indicating)  that  would  be  deeper,  and  then  would  come  up 
again  and  go  to  low  water  again  and  be  another  hole  in  there 
in  the  river.  AAJiere  the  riffles  were,  was  the  lowest  sheet  of 
water.  The  other  part,  where  the  riffles  were  not,  did  not 
amount  to  much.  It  was  in  holes.  I know  some  of  the  holes 
used  to  come  up  to  the  horses  sides.  That  would  be  four  or 
five  feet  deep.  I do  not  know  the  river  below  Joliet. 

“Q.  How  deep  water  is  necessary,  in  your  judgment,  for 
navigation  for  commercial  purposes!  A.  Now,  sir,  I just 
give  up  that  job.  I know  mighty  well  that  it  would  not  carry 
much  of  a ship  up  there.  I think  an  ocean  liner  would  have  no 
use  there  at  all. 

“I  think  at  this  time  that  since  the  Sanitary  District  has  put 
in  the  Drainage  Channel,  and  throws  the  water  in  the  Des 
Plaines  Elver,  the  river  now  is  about  the  same  width  as  it 
used  to  he  in  the  early  days.  I do  not  think  that  the  amount 
of  water  is  the  same.  I think  it  is  a little  deeper  now,  probably 
8 or  10  inches.^’  (Deposition  of  Defendant’s  AA^itness,  S.  J. 
AVilliams,  Abst.  pp.  524-6-7-8). 

(It  is  now  four  to  six  feet  deep.  Ten  inches  deducted  will 
leave  over  three  feet  of  depth). 


WEIT  AT  TREAT  ISLAND. 


“Ill  the  suininor  seasons  wlien  there  was  no  fresluit,  usually 
you  eould  walk  across  it  on  the  riffles  with  your  hoots  on  the 
stones.  It  just  seeps  through.  That  was  before  this  water 
came  down  where  they  pumped  it  in.  There  was  one  i-iffle 
right  above  Brandon’s  bridge.  I suppose  it  was  probably  100 
or  200  feet.  There  was  one  right  next  to  tlie  lake  there  we 
used  to  go  over  with  our  boots  on  in  low  water;  that  is,  just 
below  Brandon’s  bridge  where  they  forded. 

“At  some  seasons  of  some  years  there  would  be  very  little 
water  running  over  the  riffles,  and  at  other  seasons  it  would 
flood  the  whole  country.  Sometimes  they  forded  it  when  it 
was  three  feet  deep,  and  occasionally  even  deeper  than  that. 

“I  have  seen  a steamboat  on  the  Mississippi  where  the 
current  was  very  rapid.  I have  seen  some  very  rapid  cur- 
rents on  the  Mississippi.  Sometimes  the  boats  would  run 
across  a log  or  brush,  at  other  times  they  would  go  right  on 
where  they  wanted  to.  This  current  here  was  a little  stiffer 
than  in  the  Mississippi,  I think,  a little  more  rapid.  I went 
from  St.  Louis  to  Leavenworth.  I think  it  was  on  the  Missis- 
sippi. No  it  was  on  the  Missouri.  It  was  in  the  Missouri  that 
I saw  the  rapids.  I don’t  know  as  the  current  there  was 
stronger  or  not  stronger. 

THE  layman’s  idea  OF  DEPTH  NEEDED  FOR  NAVIGATION. 

“I  was  able  to  wade  this  river  different  times;  as  a general 
thing  the  water  was  about  18  inches  then;  and  you  would  run 
across  a liole  15  feet  dee]).  * * * When  I said  that  this 

river  iras  not  navigable,  and  is  not  today,  I meant  there  is 
not  5 or  h feet  of  ivater  in  it.  There  is  at  places.  I would 
not  lihe  to  consider  a river  navigable  unless  it  had  4 or  5 
feet  of  w'ater;  that  is  what  I mean  when  I say  this  river  is 
not  navigable.  When  the  water  was  very  low  in  the  river  it 
would  run  from  a foot  and  a half  to  two  feet.”  (Defendant’s 
witness  Boyne,  Ahst.,  ]).  547.) 

“I  think  it  is  according  to  how  heavy  the  trade  is,  how  dee]) 
water  is  necessary  for  commercial  traffic.  I think  if  you  have 
8 or  10  feet,  it  would  run  a good  skiff  across  it.  / should 
thinic  that  the  water  ought  to  be  not  less  than  10  feet  in  the 
river  in  order  that  it  may  be  navigated  for  commercial 
purposes.  Probably  it  can  run  at  8 feet  or  7 feet.  (Depo- 
sition of  Defendant’s  AVitness,  Jacob  Adler,  Abst.  jip.  504- 
500-507-508). 

“7  think  for  commercial  navigation  that  there  should  not  be 
less  than  4 feet  of  ivater.  I think  you  could  not  navigate  a 
river  with  less  than  4 feet.  T say  in  going  on  the  river  there 
would  not  he  enough  water  there, — I say  it  on  tiiat  account — 


:;7() 


not  above  4 teef.  I)ut  wlien  we  liave  six  inelies,  T liave  seen 
the  river  when  tliere  was  not  more  than  h inelies,  and  I know 
it  eoiild  not  he  done  in  h inelies.  I mean  on  the  riffles  all  along 
the  river.  [ don’t  mean  literally  ‘all  along  the  river,’ — I 
mean  where  the  boats  would  have  to  go  through  on  the  river. 

“In  a good  many  i^laees,  the  water  is  10  or  12  feet  deep 
on  this  1‘ivei*.  In  eeidain  seasons  on  the  riffles  it  goes  down 
to  (),  or  8,  or  10,  or  12  inches,  and  where  it  don’t  run  at  all. 
It  runs  underground,  seeps  through.  * * * * the 
summer  time  when  t went  through  there  1 crossed  when  the 
water  would  he  about  18  inches  dee]), — probably  a foot  to 
18  inches.  Lockport,  I went  there  when  it  was  not  more  than 
()  inches  deep  over  the  ford;  the  two  otlier  places  down  there 
pe]*ha])s  a little  deeper,  it  might  have  been  two  feet  in  the 
deepest  places  at  Washington  street.  At  Norman’s  we  went 
through  there  and  there  was  no  regular  road  across  the  river 
any  place  there.  It  would  be  a foot  to  18  inches  in  the  sum- 
mer time,  at  low  water  stage.”  (Deposition  of  Defendant’s 
Witness,  Lewis  K.  Stevens,  Abst.  pp.  556-557). 

“There  would  be  three  months  out  of  the  year  when  there 
would  be  quite  a good  deal  in  the  stream.  It  would  be  in  the 
summer  that  there  would  be  a small  amount  of  water  in  the 
dry  parts,  but,  of  course,  in  the  winter  and  fall  and  spring 
there  would  be  water.  During  the  seasons  of  the  year  when 
there  were  no  freshets  the  condition  of  the  river  as  to  depth 
of  water  would  be  that  there  would  not  be  very  much  water.  I 
have  seen  it  when  you  could  walk  across  the  river  beloic  icliere 
the  old  Malcolm  dam  used  to  he — you  could  go  across  on  stones. 
That  was  only  in  the  driest  parts  of  the  season.  It  might 
be  possible  in  the  normal  and  usual  condition  of  the  water 
when  there  were  no  floods  and  no  freshets  to  navigate  row 
boats  up  the  river  over  these  riffles  and  rapids  I have  spoken 
of.”  (Deposition  of  Defendant’s  Witness,  Jamies  C.  Keen, 
Al)st.  p.  594). 

“In  some  places  there  was  not  more  than  a foot  or  so  of 
water.  Of  course  there  were  riffles  and  there  were  places  with 
water  2 or  3 feet  deep  in  deep  places ; very  many  plans  where 
you  could  walk  right  across  by  stepping  on  the  stones  without 
getting  your  shoes  in  the  water. 

“Take  it  from  Lockport,  between  Lockport  and  Iiomeo, 
there  were  more  places  you  could  walk  across  the  river  than 
there  was  where  there  was  a depth  of  water,  so  you  could  not. 
This  side  of  Lockport,  there  seemed  to  be  a little  more  water. 

“I  said  I was  able  to  cross  the  river  there  stepping  from 
stone  to  stone.  I refer  to  the  low  water  times.  There  were 
times  when  the  water  would  not  be  6 inches  deep.  That  would 
be  (piite  a dry  time.  In  ordinary  stages  of  irater,  it  iroiild  he  a 


foot  or  a foot  and  a half,  find  tliose  were  tlie  shallow  })Iaees 
ill  the  river,  'and  in  high  water  it  would  go  iij)  to  5 or  t)  j‘(‘et.” 
(Deposition  of  Defendant’s  Witness,  Win.  S.  Burt,  Abst.  jip. 
571,  572,  575). 

“As  to  the  depth  of  water  in  the  river  lietween  ’41  and  ’48,  V 
eoiild  wade  across  it  without  going  over  my  hoots. 

“Witness.  The  normal  and  usual  condition  of  the  river 
upon  these  various  rapids,  as  to  depth  of  water,  was  that  it 
would  vary  from  som.e thing  like  a foot  and  a half  to  maybe  six 
or  eight  feet.  The  foot  and  a half  stage  would  prevail  three- 
quarters  of  the  year,  probably;  the  remaining  quarter  the 
river  would  be  flooded.  When  the  water  was  a foot  to  a foot 
and  a half  over  these  rapids,  they  would  worry  skiffs  along 
over  them  by  pulling  them  over  the  rapids  going  down.  They 
would  have  a hard  matter  getting  up.  They  might  worry 
them  along  and  they  might  have  to  push  them  along.  A skiff 
that  could  go  into  shallow  water,  they  could  probably  row 
along  right  close  to  the  edge  of  shore  and  keep  within  the 
current,  and  they  would  take  their  chances  of  going  down  in 
the  high  water.  They  would  have  to  be  pretty  skilfully 
handled  or  they  would  be  apt  to  capsize.  A skiff  I should  say 
could  come  along  up  the  river  in  high  water  and  keep  close 
to  the  shore. 

“At  Treat’s  Island,  and  at  the  islands  below  down  and  at 
the  head  of  the  lake,  I have  traded  across  without  getting  my 
feet  wet. 


CORDELLING. 

“Cordelling  is  to  take  a long  rope  ahead  and  hitch  it  to  a 
tree,  and  then  a lot  of  men  on  the  boat  pull  on  the  rope. 
* * * * Wliat  they  call  cordelling  is  that  they  hitch  one 

end  of  the  rope  to  a boat  and  the  other  end  to  a tree  up  the 
river,  and  then  move  the  boat  by  pulling  the  rope  end  over  end. 
I have  seen  those  stern-wheel  boats  on  the  Mississippi,  not  on 
the  upper  Mississippi,  though.  I never  saw  them  on  the 
rapids  above  St.  Paul ; I have  seen  them  down  at  Cairo.  The 
boats  I saw  there  got  along  all  right;  the  current  is  not  so 
strong  there.  I have  seen  these  stern-wheel  ])oats  on  the 
Mississippi  that  stuck  so  that  they  could  not  get  u])  through  the 
river  on  account  of  the  current.  I saw  that  at  Pock  Island, 
saw  them  stuck  there  for  half  an  hour;  you  could  not  hardly 
see  them  move,  and  they  kept  paddling  away  and  they  would 
go  over  the  rapids;  they  finally  got  over  it.  Going  down  the 
river  where  there  is  a rapid  current  with  a stern-wheel  boat, 
they  could  hold  the  boat  back  as  well  as  they  could  ])ush  it 
through  a rapid  current.”  (Deposition  of  Defendant’s  Wit- 
ness, Adam  Comstock,  Abst.  pp.  58()-7-8-9-592). 

“There  were  a good  many  rocks  and  boulders  in  the  river 


at  tlie  i)oint  wliere  these  rapids  were.  As  I say,  I Imve  walked 
aei'oss  and  not  wet  my  feet  at  tliose  places  just  below  the 
mouth  of  Hickory  Creek,  in  summer  time.  Sometimes  there 
was  not  over  twm  inches  of  water  in  some  of  these  rapids,  and 
sometimes  it  would  be  more.”  (Deposition  Defendant’s  Wit- 
ness, David  Layton,  Abst.  p.  578). 

Yes.  A.  Well,  they,  the  boats,  might  possibly  go 
down  some  of  the  time,  but  not  all  the  time. 

“You  might  possibly  float  it  down  most  of  the  time,  but 
you  could  not  get  up  very  well.  Tt  was  not  possible  during 
any  time  of  the  summer  season  to  navigate  a boat  up  and  down 
the  river  for  commercial  purposes. 

“To  conduct  a commercial  traffic  on  the  river  with  boats, 
in  order  to  make  it  profitable,  you  ought  to  have  a depth  of 
three  or  four  feet  of  ivater. 

“Q.  And  when  you  have  spoken  about  it  not  being  possible 
to  have  commercial  navigation  on  this  river  for  want  of  water, 
you  meant  because  there  were  not  at  least  three  or  four  feet 
of  water  in  the  river?  A.  If  it  was  rapids  it  would  need  a 
great  deal  more  than  three  or  four  feet,  and  then  it  ivoidd  not 
make  navigation. 

“Q.  The  other  things  that  you  had  in  mind  were  those 
rapids,  and  some  boulders  and  stones  in  the  river,  was  it  not ; 
the  other  things  you  meant  would  interfere  with  commercial 
traffic!  A.  Yees,  sir.”  (Deposition,  John  P.  King,  Defend- 
ant’s Witness,  Abst.  pp.  583-585). 

DEPTHS CURRENT FORDS BOULDEES. 

“Some  places  it  was  deeper  than  others.  We  had  to  get  out 
and  shove  it  by  hand;  we  could  not  pole  it  up  by  poles,  it  was 
too  swift.  In  the  deep  portions  below  the  lake  we  found  some. 
In  the  lake  it  was  all  right  deep.  We  could  not  touch  bottom 
there  in  some  places.  In  some  places  there  was  not  much 
water,  and  some  places  you  could  skip  right  down  a kiting, 
but  you  could  not  get  back  up,  unless  you  pulled  up  by  hand. 
We  pulled  it  over  the  worst  places,  and  then  got  in  again.  We 
could  not  pole  it  up,  it  was  too  swift.  We  had  to  pull  it  up. 
The  water  was  deep  enough,  but  it  was  too  swift,  and  there 
was  some  places  there  was  rocks  sticking  up.  We  had  a boat 
about  five  feet  wide  and  16  feet  long,  made  of  pine.  We  kept 
it  for  a good  many  years.  There  could  four  men,  and  quite 
a lot  of  stuff  ride  in  it.  We  put  the  suff  in  it  that  we  wanted 
to  eat,  that  Ave  needed  while  we  were  gone. 

“I  have  been  down  seven  or  eight  times  altogether.  The 
last  time  I was  doAvn  there  ivas  over  thirty  years  ago.  I took 
one  trip  down  there  since  the  war;  the  others  were  all  before 
the  tear. 

“There  a channel, — there  Avas  one  ford  at  Ti*eat’s 


‘;7‘> 
o/  o 

Islniul  niul  ilireo  Fords  Ix'lwooii  and  t!u^  inoutl)  oF  tlio 

river.  I was  faiiiiliar  with  caudi  oF  tliein  at  that  time,  ddiat 
was  a «’0()d  while  ago.  1 forded  eacdi  one,  and  the  water  at 
some  phases  was  above  your  knees  in  depth. 

^‘Idie  first  ford,  taking  tlie  mouth  of  tlie  Des  Plaines  river 
and  working  up  this  way,  is  the  one  at  Treat’s  Island.  That 
is  the  first  one  I met  coming  up,  and  I think  I have  been  to  all 
the  fords. 

“I  could  not  tell  you  how  many  times  I have  been  at  the 
mouth  of  the  Des  Plaines  River;  four  or  five  times.  We  used 
to  go  seining  and  spearing.  I owned  a share  in  the  200  foot 
seine.  At  Treat’s  Island  we  poled  it  up  and  then  waded  and 
pushed  it  part  of  the  way,  and  then  the  water  got  above  our 
knees,  and  we  carried  it  around.  There  were  lots  of  rock 
there.”  (Deposition,  Joseph  Countryman,  Complainant’s 
Witness,  Abst.,  pp.  477-478-480). 

^‘I  have  seen  the  water  over  this  Jefferson  street  dam  here 
when  it  varied  from  an  inch  to  two  feet  in  a season.  I have 
seen  two  feet  of  water  on  that  dam,  and  I have  seen  it  when 
the  water  did  not  run  over  it  at  all.”  (Deposition,  PTrias 
Bowers,  Defendant’s  Witness,  p.  602). 

Using  a boat  drawing  15  inches  of  water — Treat’s  Island  was 
the  shallowest  place — there  used  to  be  an  old  dam  or  some  thing.  I 
have  grounded  there  a great  many  times.  Sometimes  I had  to 
get  out  and  pull  it  over.  Generally  I could  pole  it  over.  The 
length  of  that  shalloiv  place  tvas  not  over  100  feet.  (Deposition, 
Arthur  C.  Clement,  Abst.  p.  393). 

DEPTHS  OF  THE  ILLINOIS. 

‘‘In  1849,  the  time  they  were  going  to  California,  there 
were  five  steamboats  loaded  at  Ottawa.  They  fetched  u})  a 
hogshead  of  sugar,  coffee,  and  such  stuff,  unloaded  it  there. 
There  was  one  boat  went  to  Marseilles.  At  that  time  there 
was  a darn  at  Marseilles.  They  could  not  go  any  further. 
There  is  no  doubt  in  my  mind  there  was  water  enough  to  boat 
then  to  the  Kankakee.”  (Deposition,  Knos  Field,  Abst.  ]). 
599). 


WIDTH. 

“When  the  river  was  at  high  flood,  it  spread  over  consider- 
able land  down  here.  I could  not  tell  you  how  wide  it  would 
be, — probably  80  rods,  that  would  be  one-fourth  of  a mile. 
I never  measured  it.  It  might  be  four  or  five  feet  deep.  F 
did  not  measure  it  at  high  time  or  low.  (Deposition,  David 
Layton,  Defendant’s  Witness,  Abst.  p.  580). 

“In  extreme  high  water  this  river  got  to  be  half  or  three- 


574 


(/Kdiiers  of  (i  mile  wide  in  many  places;  I don’t  renieinher  how 
(leoj)  it  was  at  tliose  times.”  (Deposition.  Franklin  Follins, 
Defendant’s  Witness,  Abst.  p.  (ill)). 

Tile  witness  William  JI.  Zarley,  a surveyor,  testified  that  he 
measured  tlie  width  of  the  river  in  each  eliannel  around  Treat’s 
island  during  the  trial. 

“The  right-hand  cdiannel  at  the  ui)per  end  of  the  island 
is  527  feet  wide.  At  the  foot  of  the  island  it  was  209.8  feet 
wide.  At  file  liridge,  or  central  part  of  the  island,  it  was 
145  feet.  That  is  tiie  width  of  the  river.  We  considered  the 
])lace  at  the  bridge  the  narrowest  point.  It  was  145  feet  in 
width.  The  left-hand  channel  at  the  head  of  the  island  was 
270.0  feet,  and  at  the  foot  of  the  island  185.8  feet,  and  at 
the  narrowest  point  of  the  right-hand  channel  it  is  now,  prob- 
ably, 15  or  20  feet  wider  than  at  normal  stage.  In  the  left- 
hand  channel  at  the  head  of  the  island,  it  is  about  what  it  is 
at  the  normal  width.  There  is  a swamp  there  with  shallow 
water,  but  we  did  not  count  that  in  the  width  of  the  river. 
At  the  foot,  the  185  feet  represents  about  the  normal  flow, 
but  the  river  was  wider  there  yesterday  than  185  feet.  The 
narrowest  place  in  the  left-hand  channel  was  128  feet  and 
that  is  about  the  normal  condition  of  the  river.”  (Abst.,  p. 
871.) 

‘‘There  is  another  little  island  in  the  right-hand  channel, 
between  the  head  of  Treat’s  Island  and  the  narrowest  point 
given  in  my  statement.  I did  not  measure  the  channel  on 
either  side  of  that  little  island.”  (Abst.,  p.  872.) 

On  the  map  of  Treat’s  Island  in  the  Alarshall  Survey  of  1899, 
(Zarley  Exhibit  1,  Cooley  Exhibit  25,  Marshall  Sheet  18),  at  the 
narrowest  point  on  the  east  side  of  the  small  island,  which  shows 
about  75  feet  at  the  point  marked  “M.”  The  narrowest  place 
of  the  right-hand  channel  on  the  right  of  the  little  island  in  that 
channel  is  about  90  feet;  that  is  the  point  marked  “M. ” (Abst., 
p.  875.) 


DEPLETIONS DRA.INAGE DENUDATION. 

“The  water  that  used  to  come  into  the  swamp  region  above 
there  is  now  carried  off  by  the  tiles.  The  tiles  were  not  there 
in  my  father’s  and  grandfather’s  day,  nor  in  my  early  boy- 
hood days.  The  water  runs  away  from  this  swamp  district 
into  river  much  more  rapidly  than  it  used  to.  In  the  old  days 
it  run  oft  much  more  slowly.  The  body  of  water  in  the  river 
in  dry  times  is  much  less  now  since  the  tile  were  put  in  than 


it  used  U)  i)e.  lUd'oi'e  the  tilo  w(M’o  put  in  the  watcu*  was  (l(‘(q)(;r 
than  at  tlie  time  1 have  deserihed.  * * " ” (Dcijjo- 

sition,  (leorge  S.  Wigiitman,  At)st.  p.  428). 

“ Prior  to  18()()  there  used  to  be  more  water  in  the  riven*  in 
the  summer  time  than  there  was  after  that  for  some  yenirs. 
Tliat  was  because  the  farmers  were  draining  their  lands  ai)ont 
that  time  everywliere  by  ditching  and  tiling.  The  tiling  and 
draining  dried  up  the  sloughs,  and  then  in  the  summer  there 
was  no  water  in  the  river.  It  was  lower  than  it  was  after  the 
putting  in  of  the  drains.  I have  been  fishing  up  there  prior  to 
1860,  when  the  water  was  two  feet,  and  some  places  four  feet 
deep.  After  that  in  a very  dry  summer  there  was  not  water 
running  through  the  river  at  Lockport.  Of  course  there  w^as 
plenty  of  water  in  the  spring  and  fall.  (Deposition,  Obadiah 
Hicks,  Abst.  p.  436). 

“We  took  the  boat  and  run  it  into  the  bank  and  took  a rope 
'and  anchored  it  and  two  men  pull  on  the  rope  until  we  got 
near  the  end  of  the  anchor  and  then  we  hugged  the  bank  and 
kept  on  that  way  until  we  got  up.  W e came  up  hand  over  hand 
in  the  river. 

“When  they  put  in  the  tile,  it  drained  and  let  the  water  run 
out.  The  water  ran  away  faster  after  the  tile  was  put  in.  It 
would  be  higher  then.  Then  after  the  water  was  run  out,  it 
would  be  lower.  (Deposition,  Francis  Belz,  Abst.  p.  443). 

“Mount  Joliet  has  been  pretty  near  all  carted  away  by 
being  used  for  gravelling  and  clay  for  file  drains.  The  mound 
is  now  pretty  near  level.  They  were  carting  it  away  in  1863. 
(Deposition,  Arthur  C.  Clement,  Abst.  ]).  394). 

“There  was  a pretty  good  depth  in  some  places,  34  to  4 
feet.  I couldn’t  hardly  say  what  it  would  avei*age  all  over; 
considerably  more  than  it  would  average  now.  T have  noticed 
the  falling  off,  which  I supposed  was  caused  by  the  canal  and 
the  land  being  tiled  out,  that  it  drained  it  off  so  there  ain’t 
so  many  feeders  feeding  into  the  river.  The  river  itself  has 
been  used  to  feed  the  canal.”  (Deposition,  Frank  Paddock, 
Abst.  pp.  469-470). 

OPINIONS  OF  EXPERT  WITNESSES. 

Among  the  expert  witnesses,  who  testified  on  behalf  of  the  State 
that  in  their  opinion  the  Des  Plaines  was  a navigable  stream,  were : 

Win.  E.  Tibbals,  Pilot  and  IT.  S.  Steanilioat  Inspector, 
Dubuque,  Iowa,  Abst.  p.  634; 

Gov.  8.  R.  Van  Sant,  Pilot,  Master  and  Head  of  Naviga- 
tion Companies,  Minneapolis,  Minn.,  Alist.  p.  854; 

Win.  H.  Bing,  Pilot  and  Master,  Cincinnati,  Ohio,  Abst.  ]). 
663 ; 


Lyman  K.  (Vjoloy,  Hydraulic  Engineer,  (diicago; 
Theodore  L.  l>urton,  Cliaiianaii  IJiver  and  irarbor  Appro- 
priations (Committee,  Cleveland  and  Wasliington; 

Cen.  A.  Mackenzie,  IJ.  S.  Chief  of  Engineers,  Wash- 
ington, I).  C. 

Among  the  witnesses  called  by  the  defense,  wlio  testified  that  in 
tbeir  opinion  the  Des  Plaines  Iiiver  was  not  a navigable  stream, 
were:  the  pilots: 

K.  W.  Bewley,  Bowling  Green,  Ky.,  Abst.  1010; 
ft  oh  11  McCaffrey, 

Jos.  E.  McCullough, 

Isaac  W.  Mason, 

N.  P.  Pryor, 

J.  W.  Rambo, 

W.  H.  AVhisler, 

Thos.  T.  Boyle,  and 
Win.  P.  Gray. 

It  is  a familiar  fact  that,  in  the  language  of  Mr.  Justice  Miller, 
4 Dillon  448 : 

‘‘Whenever  the  matter  in  contest  involves  an  immense  sum 
in  value,  and  where  the  question  turns  mainly  upon  opinions 
of  experts,  there  is  no  difficulty  in  introducing  any  amount  on 
either  side.’^ 

Mr.  Woodson,  in  an  article  published  in  the  “Kentucky  Law 
Reporter,  ’ ’ in  February,  1882,  says : 

“When  expert  testimony  was  first  introduced  it  was  re- 
garded with  great  respect.  An  expert  when  called  as  a wit- 
ness was  received  as  the  representative  of  the  science  of  which 
he  was  professor,  giving  impartially  his  conclusions.  Two 
conditions  have  combined  to  produce  material  changes  in  this 
relation.  Few  specialties  are  so  small  as  not  to  be  torn  by 
factions,  and  often  the  smaller  the  specialty  the  bitterer  and 
the  more  inflaming  and  destroying  are  the  animosities  by 
which  these  factions  are  possessed.  Peculiarly  is  this  the 
case  in  matters  psychological,  in  which  there  is  no  hypothesis 
so  monstrous  that  an  expert  cannot  be  found  to  serve  it  on 
the  stand  and  to  defend  it  with  vehemence  when  off  the  stand. 
* * * * In  the  second  place,  the  retaining  of  experts 

by  a fee  proportioned  to  the  importance  of  their  testimony 
is  now,  in  cases  in  which  they  are  required,  as  customary  as 
the  retaining  of  law^mrs.  * * * * Hence,  it  is  that,  apart 

from  the  partisan  temper  more  or  less  common  to  experts. 


tlioir  iiti(H-aiU'(‘s,  now  ilial  tli(‘y  have,  as  n ('Jass,  Ixk'oiik;  llio 
relainod  ai»(Mits  of  (ho  parlios,  have  lost  all  judioial  authority, 
and  aro  ontitlod  only  to  ho  tho  woiglit  whioh  a sound  and  oan- 
tions  oriiioisni  would  award  to  the  testimony  itself.  (4  7\uieri- 
oaii  Lawyer,  p.  201). 

“As  is  well  said  hy  Judge  Cooley,  in  Fraser  v.  f/emison, 
42  iMioh.,  20();  testamentary  eases  are  ever  to  l)e  hrouglit  to 
a conclusion  there  must  he  some  limit  to  the  reception  of  ex- 
pert evidence.  * * * obtain  such  evidence  is  expen- 

sive, since  desirable  witnesses  are  not  to  he  found  in  every 
community;  hut  an  array  may  he  had  if  the  court  will  consent 
to  their  examination;  and  if  legal  controversies  are  to  he 
determined  by  the  preponderance  of  voices,  wealth  in  all  liti- 
gation in  which  expert  evidence  is  important  may  prevail  al- 
most, of  course.’ 

‘ ‘ Other  noticeable  abuses  have  grown  up  in  connection  with 
the  introduction  of  this  class  of  evidence,  viz. : The  great 
expense  attending  its  use;  the  fact  that  courts  permit  such 
testimony  to  be  introduced  without  limit,  in  many  cases,  as  to 
the  number  of  witnesses  to  be  examined.”  (4  Amer.  Lawver, 
p.  203). 

In  Springer  v.  Yerkes,  the  question  arose  against  Yerkes  and 
the  West  Chicago  St.  E.  E.  Tunnel  Co.,  whether  one  of  the  tunnels' 
could  be  projected  under  the  Chicago  Elver  and  under  the  building 
on  the  shore  without  ruining  the  building.  The  Tunnel  Company 
wanted  a free  hand  in  building  its  tunnel,  and  did  not  want  the 
burden  of  upholding  the  building.  The  owner  of  the  building, 
on  the  other  hand,  wanted  not  to  be  disturbed,  and  brought  an 
injunction  suit  against  the  Tunnel  Company.  The  opinions  of 
engineers  and  architects  were  assembled  in  that  case,  pro  and  con, 
and  Judge  Tuley  in  sustaining  the  injunction,  remarked  that: 
“T/ie?/  stvore  like  insanity  experts/^  (22  Chicago  Legal  News,  ]). 
256). 

The  State  in  presenting  its  case  deemed  that  the  testimony  of  a 
few  eminent  and  well  known  masters,  pilots  and  engineers,  of  un- 
doubted authority  in  their  callings,  would  be  sufficient  to  corro- 
borate the  evidence  from  early  history  and  from  the  legislative 
policy  of  the  State,  and  made  no  attempt  to  amass  any  great 
body  of  such  evidence.  Again,  the  State  was  hampered  by  lack  of 
funds  to  expend  in  such  a matter.  It,  therefore,  called  on  this 
point  only  the  experts  named  above,  and  submitted  to  tliein  in  the 


:,78 

(‘oui't  room  the  liypotlietic'al  ([uestion,  giving  the  })rin(*it)al  j)liy.sical 
('liara('teristi('s  of  tlie  river,  and  took  their  o})inions  tliereon. 

The  defendant,  on  the  other  hand,  ai)i)arently  not  being  liani})- 
ered  by  sneh  lack  of  ineaiiKS,  ealled  twiee  as  many  witnesses,  took 
them  in  an  antomol)ile  for  a ride  along  tlie  river  bank  and  crossed 
one  or  more  of  the  })ridges,  and  then  hurried  them  into  the  coui't 
room  to  say  tliat  tliey  had  seen  the  river  and  knew  it  was  not  navi- 
gn])le.  One  of  the  defendant’s  experts,  for  example,  Isaac  W. 
Mason,  arrived  in  Joliet  on  the  Alton  train  one  morning,  there 
took  a carriage  and  drove,  he  said,  ‘Jo  the  site  of  the  dam,  and  six 
oi*  seven  miles  to  Minooka,  where  I took  a train  for  Chicago.” 
lie  arrived  in  Chicago  before  noon  and  went  directly  to  the  court 
room  and  testified  before  the  noon  recess.  (Record  pp.  4208-4213). 
Obviously  his  inspection  of  the  river  must  have  been  of  the  most 
cursory  character.  This  particular  witness  testified  that  his  ex- 
perience on  boats  was  as  second  clerk  and  captain,  selling  tickets, 
collecting  money  and  attending  to  freight  contracts;  that  he  never 
had  a pilot’s  license,  and  his  duties  had  nothing  to  do  with  navi- 
gating a boat,  and  after  leaving  the  business  of  being  freight  agent, 
he  hecame  city  auditor,  sheritf,  and  city  and  county  marshall  of 
St.  Louis.  He  testified  to  navigating  the  Rock  Island  Rapids  at  a 
current  of  ten  or  eleven  miles  an  hour,  and  the  Falls  of  the  Ohio 
through  a fall  of  32  feet  in  two  miles,  at  a current  of  eight  miles 
an  hour;  and  added  that  it  was  43  years  since  he  quit  running 
over  the  Rapids  of  the  Mississippi,  and  that  there  were  no  locks 
and  dams  on  the  Cumberland,  Tennessee,  or  Allegheny. 

The  only  real  value  of  such  testimony  is  to  show  that  greater 
difficulties  than  any  to  be  foundHn  the  Des  Plaines  have  in  fact 
been  successfully  navigated  for  many  years.  Calling  such  a wit- 
ness was  a reckless  blunder  on  the  part  of  the  defendant,  who  with 
great  labor  developed  that  in  high  water  the  slopes  of  the  Ohio 
and  the  Mississippi  were  flattened  out  and  obliterated  by  the  high 
water,  and  that  was  the  general  phenomenon  on  such  slopes. 

For  the  same  reason,  the  high  water  of  the  Des  Plaines,  reach- 
ing to  floods  of  840,000  cubic  feet  of  water  per  minute,  aside  from 
a similar  amount  from  the  Sanitary  Channel,  would  flatten  out 
and  obliterate  the  slopes  of  the  Des  Plaines. 

And  with  the  abundant  flood  from  the  Sanitary  District  Channel, 


ilio  Dos  Plaiiios  may  bo  said  to  bo  in  a (constant  state  of  hi^Ii 
wator,  and  its  slo])es  constantly  o])literatod. 

Tlio  dofondant  supplemented  the  testimony  of  its  experts  by 
numerous  old  settlei-s,  wlio  testified  with  ecjual  positiveness  that 
in  tlieir  opinion  the  Des  Plaines  was  not  navigable.  Their  testi- 
mony reminds  one  forcibly  of  the  testimony  for  tlie  defendant  in 
Reg.  V.  Orton.  Mr.  J.  T.  Morse  says  of  this  evidence: 

^^Dr.  Kenealy  began  his  evidence  for  the  defense  by  mar- 
shalling a perfect  host  of  witnesses  from  M^apping,  who  over- 
flowed the  court  room  and  Westminster  Hall,  that  most  spa- 
cious of  ante-rooms,  in  abundance,  like  the  locusts  of  Egypt. 
They  were  the  old  acquaintances  of  Arthur  Orton,  and  con- 
stituted a horde  much  less  distinguished,  if  more  numerous, 
than  the  gentlemen  and  ladies  who  had  appeared  as  the 
friends  of  the  lost  heir  of  Tichborne  Park.  * * * 

present  this  evidence  in  detail,  would  be  to  set  before  the 
reader  a task  almost  as  fatiguing  to  his  patience  as  Homer’s 
Catalogue  of  the  Ships.’  It  must  be  treated  generally. 

‘^The  witnesses  were  all  introduced  for  the  purpose  of 
swearing  that  the  defendant  was  not,  in  their  opinion,  the 
Arthur  Orton  whom,  in  days  long  past,  they  had  seen  and 
known,  more  or  less  intimately,  at  Wapping.  This  assertion 
they  all  gallantly  made,  pouring  in  interminable  succession 
for  many  days  through  the  witness  box.  They  were,  of  course, 
for  the  most  part,  ignorant  persons,  whose  beliefs  and  judg- 
ments, individually  considered,  were  not  very  impressive  or 
convincing.  Beyond  this,  too,  they  were  far  from  agreeing 
with  each  other  in  all  particulars,  even  in  all  essential  particn- 
lars.”  (‘‘Famous  Trials,  The  Tichborne  Claimant,”  by  J.  T. 
Morse,  Jr.,  pp.  94-5.) 

QUALIFICATIONS  OF  EXPERTS  FOR  COMPLAINANT. 

William  R.  Tihhals  {Abst.  p.  634,  et  seq.). 

Seventy-six  years  old,  residence,  Dubuque,  Iowa,  since  March, 
1857. 

Navigated  the  Mississippi  since  1854. 

Government  license  as  pilot  received  April,  1855.  Has  navigated 
the  Mississippi,  the  St.  Croix,  the  Iowa,  the  Des  Moines,  the  AVis- 
consin,  and  the  Chippewa. 

United  States  Supervising  Inspector  of  Steam  Vessels  appointed 
by  President  Cleveland  for  the  district  of  the  Mississippi  Kiver 
and  its  tributaries  from  Keokuk,  Iowa,  to  St.  Paul ; and  Lake 


Sui)cri()r  ])()i-(lei-iiig  WLscoiisiii.  Was  eonrieeted  witli  tlie  United 
States  Uaigineer’s  Office  at  Eock  Island  for  seven  years. 

This  cliapter  of  experience  and  qualification  is  of  the  very  best. 
It  covei’s  an  experience  of  54  years  of  actual  navigation  through 
the  upper  Mississippi,  with  its  upper  rapids,  extending  from  Eock 
Island  to  LeClaire,  and  the  Des  Moines  Eapids  at  the  mouth  of 
the  Des  Moines  Eiver,  its  shallow  waters  in  Minnesota,  and  the 
whole  series  of  narrow  tributaries, — which  are  streams  of  the  same 
class  as  the  Des  Plaines  Eiver. 

He  describes  boats  that  draw  12  inches  of  water,  10  inches  of 
water,  28  to  30  inches  of  water,  2|  to  4 feet  of  water;  and  states 
that  he  has  steamboated  on  the  Mississippi  on  14  inches  of  water, 
and  has  navigated  through  the  Moline  chain  of  rapids,  with  a 
current  of  9 miles  an  hour,  before  there  was  any  improvement  of 
the  stream. 

He  is  asked  the  following  ciuestion: 

‘‘Q.  Now,  I will  ask  you,  Mr.  Tibbals,  to  take  the  case  of 
a river  which,  for  a period  of  four  to  five  months'  each  year, 
exclusive  of  the  time  she  was  frozen  over,  and  exclusive  of  the 
time  of  extreme  low  water,  presented  a depth  of  water  which 
would  range  from  18  inches  to  10  feet  of  water,  in  a channel 
which  would  range  from  250  wide,  to  a quarter  of  a mile  wide, 
and  which  had  a current  which  varied  from  an  almost  imper- 
ceptible current  in  some  of  the  wide  spots  where  it  was  a 
quarter  of  a mile  wide  and  ten  feet  deep,  to  a current  much 
of  the  way  at  two  and  a half  miles  an  hour,  and  which  would 
ascend  to  three  and  a half  miles  an  hour,  and  in  one  or  two 
places  to  five  miles  an  hour,  and  in  one  or  two  places  to  seven 
and  seven  and  a half  miles  an  hour,  the  swiftest  current  in  one 
instance  being  in  a shallow  part,  and  in  another  instance  being 
where  the  water  was  somewhat  deeper,  but  not  up  to  the  large 
depth,  I will  ask  you  to  state  whether  or  not,  in  your  judgment 
as  a navigator,  that  stream  would  be  a navigable  stream? 

‘H  have  here  a map  which  has  already  been  introduced  in 
evidence,  and  one  which  is  a certified  copy  of  the  Government 
record,  and  this  is  the  one  that  has  no  annotations  of  any 
kind  upon  it,  but  just  as  it  comes  from  the  Government,  and 
it  is  drawn  on  the  standard  Government  scale  of  two  inches  to 
the  mile,  and  the  stream  is  such  as  is  shown  you  on  the  ma]) 
before  you,  which  may  be  called  McCullougli  Exhibit  I,  and 
which  is  drawn  on  the  scale  of  two  inches  to  the  mile;  and  the 
particular  part  of  the  stream  vre  are  interested  in  is  from 
Joliet  to  the  mouth  of  the  river,  and  the  bends  are  such  as 


are  shown  on  tliis  ]Vl(*'(/ull()iij>irs  Kxliihit,  which  is  dj-awii  lijion 
the  scale  of  two  inches  to  the  mile. 

‘^The  Court.  You  may  state,  after  haviriij^  lieard  tlie  objec- 
tion of  counsel,  whether  you  are  competent  on  the  hypothetical 
question  as  put  to  you  by  Mr.  Starr,  and  without  further  in- 
formation hearing  on  the  point,  suggested  in  the  objection,  to 
answer  the  question  whether  such  a river  as  stated  is  or  is 
not  navigable.  A.  As  Mr.  Starr  asks  the  question,  I would 
say  yes. 

“The  Court.  That  is  you  would  say  that  any  river  which 
answers  the  description  given  by  Mr.  Starr,  irrespective  of 
anything  else.  A.  Yes,  sir. 

“Q.  No  matter  what  else  you  might  add  to  it,  it  would 
always  remain  and  be  a navigable  river?  A.  Yes,  sir.’’ 
(Abst.  pp.  637,  638.) 

Captain  William  H.  Bing  {Ah si.  p.  663,  et  seq.). 

Home,  Cincinnati,  Ohio.  Steamboat  captain  and  pilot. 

Engaged  in  that  business  since  1873.  Followed  it  continuously 
to  close  of  navigation  last  year.  Licensed  by  the  Government  as  a 
pilot  on  the  Ohio  and  its  tributaries.  Has  navigated  the  Ohio, 
the  Great  Kanawha,  the  Big  Sandy  Biver  and  the  Kentucky. 

Has  navigated  the  Ohio  on  12  inches  of  water  in  the  deepest  part 
of  its  shoal  places.  Every  summer  it  is  about  as  low  as  three 
feet,  and  sometimes  under.  The  Kanawha  varies  from  10  inches 
to  3 feet  at  low  water,  and  from  15  to  20  feet  at  high  water.  It  got 
as  low  as  six  inches  at  Charleston,  lY.  Va.,  on  the  gauge.  Has 
navigated  by  barges  that  draw  from  (>  to  10  inches  in  low  water. 

Both  Captain  Bing  and  Captain  Tibbals  describe  the  operations 
of  cordelling:  by  letting  out  an  anchor  with  a line,  and  winding 
up  a capstan  on  the  boat,  and  double  tripping  with  half  the  load, 
to  get  up  the  difficult  places. 

Captain  Bing  is  asked  the  same  (luestion  as  Captain  Tibbals 
with  the  following  added: 

“Q.  I will  add  to  that,  that  you  may  include  in  the  condi- 
tions, that  there  is  a stretch  of  nearly  a mile  where  it  passes 
an  island  where  the  width  is  less  than  250  feet,  and  in  one  part 
goes  down  to  nearly  60  feet  feet;  that  the  area  of  the  imper- 
ceptible current,  or  very  low  current,  is  in  a strip  of  the  river 
between  five  and  six  miles,  and  where  the  river  runs  very 
nearly  straight  without  bends,  and  is  about  a quarter  of  a mile 
wide,  and  that  there  is  another  place  in  the  river  where  the 


curr’ent  is  very  sluggisli  foi*  a])ont  a mile,  where  it  goes  around 
a 1‘atlier  huge  l)en(l  and  wliei'e  the  river  is  from  tliree  to  six 
hundred  feet  wide  as  it  goes  around  tlie  bend;  that  the  swift 
current  of  seven  and  a lialf  miles  is  confined  to  an  area  not 
exceeding  a mile  or  a little  more,  less  than  two  miles  in 
length.” 

''A.  '[  would  say  that  it  would  be  a navigable  stream.” 
(Al)st.,  p.  666.) 

He  was  asked  wliether  it  would  l)e  navigable  if  it  had  a fall  of 
90  feet  in  18  miles,  and  he  replied  that  there  would  have  to  be  im- 
provements made  on  it.  (Abst.,  p.  673.) 

The  only  way  in  which  that  suggestion  can  be  made  applicable  is 
by  including  the  distance  above  the  Dam  No.  1 to  Lockport  to  get 
the  90  feet  fall,  and  there  44  1/2  feet  of  fall  have  been  taken  out 
by  the  Sanitary  District  lock.  The  improvements  which  Captain 
Bing  thought  would  be  necessary  have  been  made. 

Gov.  Samuel  R.  Van  Sant,  Minrieapolis,  Minn.  (Abst.,  p.  854, 

et  seq.). 

Hon.  S.  R.  V an  Sant  has  been  employed  on  the  Mississippi  River 
since  1857,  and  was  continuously  in  the  business  of  piloting,  hand- 
ling and  operating  steamboats  (barring  four  years  in  the  Civil 
War).  Is  now  connected  with  the  Van  Sant  Navigation  Company 
and  the  Carnival  City  Packet  Company,  which  own  and  operate  ten 
steamboats  on  the  Mississippi  at  this  time.  His  companies  have 
owned  forty  boats  on  the  river.  Has  made  the  trip  on  the  Missis- 
sippi a great  many  times,  500  to  1,000  trips  (20  to  25  trips  a season 
for  the  46  years). 

His  father  kept  a boat  yard,  and  he  worked  in  the  manufacture 
and  repair  of  steamboats  froni  boyhood. 

5Vas  Governor  of  Minnesota  from  1900  to  1905. 

The  Mississippi  loses  4 1/2  months’  time  in  winter  and  2 months 
for  low  water  in  summer,  leaving  5 1/2  months  for  navigation, — 
varying  from  5 to  7 in  different  seasons.  In  exceptional  years,  like 
1864,  navigation  is  entirely  suspended  for  the  whole  season. 

He  describes  a list  of  a dozen  specific  boats,  dravring  from  12  to 
30  inches  of  water,  and  carrying  loads  of  from  20  to  50  tons. 


OQO 

tJOO 

I[o  is  asked  the  same  (]iiesti()n  as  is  f)iit  to  ()a|)iain  IVin^,  witii  tlie 
following  addition  and  answer: 

‘H\>UNSEn  FOR  (\)MpriAiNANT.  I wilNaceopt  the  last  sug- 
gestion as  to  the  (|nestion  and  put  it  up  a stream  answering 
these  (pialifications,  if  it  would  l)e  such  that  boats  carrying 
freight  would  he  capable  of  being  operated  up  and  down 
the  river. 

‘‘The  Court.  For  commercial  purposes! 

“Counsel  for  Complainant.  -For  commercial  purposes. 

“Counsel  for  Defendant.  The  question  is  still  objected  to. 

“The  Court.  Governor,  do  yon  believe  you  have  sufficient 
data  to  give  an  intelligent  answer  to  that  question! 

“A.  I think  I have. 

“The  Court.  Yon  may  answer  it. 

“A,  In  my  judgment  it  could. 

“Counsel  for  Defendant.  Then  I will  ask  the  further 
question  separately,  in  your  judgment  would  or  would  not 
the  stream  possessing  these  qualifications  be  a navigable 
stream ! 

“Counsel  for  Defendant.  That  is  objected  to. 

“The  Court.  I sustain  that  objection.”  (Abst.,  p.  864.) 

Upon  cross-examination,  he  was  asked  questions  about  the  fall 
of  the  river  above  Dam  No.  1,  which  was  taken  out  by  the  Sanitary 
District  lock,  and  a variety  of  other  questions,  as  follows: 

“As  a navigator,  without  knowing  the  width  of  the  channel 
where  I was,  to  determine  whether  it  was  navigable  or  not, 
and  at  the  place  where  the  velocity  was  the  greatest,  without 
knov/ing  the  width  of  the  channel  but  knowing  the  velocity,  T 
would  be  able  to  state  whether  or  not  the  river  at  that  point 
was  navigable.  If  T know  the  depth  of  the  water  in  warping, 
I would  carry  the  cable  and  the  anchor,  a*  thousand  or  1,200 
feet.  It  depends  on  the  length  of  the  line,  carrying  it  along 
the  side  of  the  channel  where  it  was  not  so  swift. 

“The  movement  of  the  boat  during  the  warjiing  is  as  fol- 
lows: They  steer  the  boat  just  the  same.  They  use  her 
wheels  but  this  helps  the  boat  over.  Her  ]>ower  does  not 
quite  overcome  tlie  current  and  they  pull  her  up  with  the 
anchor.  They  usually  try  to  get  the  anchor  above  the  chain. 
If  not,  they  lay  it  twice.  They  are  supposed  to  pull  in  the 
channel.  When  I say  such  a river  as  described  in  the  hypo- 
thetical question  used  by  Mr.  vStarr,  can  be  used  for  boats,  I 
refer  to  light  draft  boats,  I should  judge  125  to  30  or  40  feet 
in  length.  For  useful  commerce,  the  dimension  of  a boat  would 
depend  upon  the  commerce  and  the  nature  of  the  stream.  If 
you  want  to  build  a boat  of  sufficient  light  draft  to  navigate 
the  river  to  make  it  profitable,  I say  a boat  without  a cabin 
and  a ver}^  little  upper  works,  built  with  very  light  draft 


fi'oin  tlio  very  start,  you  (*au  make  lier  so  tliat  she  will  draw 
uot  to  exeeed,  say,  about  twelve  inches  of  water;  about  one 
hundred  and  forty  feet  long';  thirty  feet  wide,  2()  to  30. 

Sixty-foot  river  had  boulders  sticking  up,  so  that  a 
canoe  only  can  dodge  them,  why  it  could  not  be  navigable.  1 
would  say  that  in  my  judgment.  That  is  answering  the  ques- 
tion on  those  suppositions.  That  is  the  point  right  there.  If 
those  boulders  are  sticking  up  there,,  so  that  it  takes  a canoe 
to  dodge  them,  it  would  not  be  navigable  for  a steamboat. 
That  is  distinctly  understood. 

‘^Counsel  for  Defendant.  Assuming  now,  for  the  purposes 
of  this  question,  that  the  boulders  were  not  there,  and  that 
it  was  sixty  feet  wide,  and  fifteen  inches  deep. 

Well,  are  the  boulders  there? 

‘‘Q.  Yes,  sir;  they  are  there.  A.  But  I am  asking  a ques- 
tion. 

Yes,  sir;  they  are  there.  People  walk  over  them  dry- 
shod  in  summer.  But,  assuming  that  they  were  not  there 
and  that  river  is  sixty  feet  wide  and  you  have  a fall  of  2.78 
feet  per  thousand  feet.  Can  you  take  a steamboat  by  them, 
in  its  natural  condition? 

“A.  I could  if  the  water  was  deep  enough. 

I said,  fifteen  inches  of  water. 

^‘A.  I think  it  could  be  done. 

For  the  purposes  of  profitable  commerce? 

Oh,  yes,  sir. 

On  15  inches  of  water? 

Oh,  yes,  sir. 

On  such  a boat  as  you  have  described? 

^ ^ A.  On  such  a boat  as  I have  described. 

The  boat  which  you  have  described  when  it  was  loaded 
would  rest  on  the  bottom  in  that  place? 

‘^A.  I would  not  load  it  so  heavy.  I would  load  it  accord- 
ing to  the  water.  I have  always  done  that. 

* -*  # * * * * * 

Now,  Governor,  as  a man  who  has  spent  his  life  in 
this  business,  taking  such  a river  as  I have  described,  20  miles 
long,  with  those  natural  difficulties  and  obstructions,  and  there 
being  no  river  above  affording  profitable  commerce,  so  as  to 
make  it  worth  while  to  overcome  those  obstructions,  would 
you  say  that  that  20  miles  of  river  in  its  natural  condition 

would  be  an  avenue  for  profitable  commerce?’^ 

^ ^ ^ ^ ^ 

^^The  Witness.  I supposed  your  question  would  be  along 
the  same  lines  as  the  question  which  the  other  side  proposed, 
and  I answered  it.  Now,  if  the  facts  are  as  you  state  them, 
and  upon  the  assumption  that  there  is  nothing  on  either  bank 


I 


:5Hr) 

01'  nothing-  at  the  liead  to  ('oine  down  tli(‘  i-iv(*r,  no  I'rcn^lit  oi* 
no  ])oo|)lo,  it  ■would  not  ])ay  to  navigate  the  river. 

“Assnining  that  at  this  particndar  point  whei'e  tin*  tall  was 
0.5  feet  in  2,000  feet,  that  within  that  2,000  feet  there;  was  a 
very  sharp  bend  of  the  river,  as  to  liow  that  would  aff(;(;t  the; 
ability  to  bring  a boat  np  in  that  veloenty,  it  wonld  make  it 
more  difficult,  but  we  frequently  turn  very  sharp  turns  in  the 
river.  I never  have  done  that,  because  I never  navigated  a 
river  that  had  those  questions  to  meet.  Going  down  a ])oint 
like  that  I have  described,  in  such  a boat  as  you  have  de- 
scribed, we  would  have  to  do  what  we  call  ‘check’  around  a 
place  like  that,  back  off  and  go  ahead,  back,  back,  just  twist 
the  boat  around  those  points.  We  did  that;  we  did  it  safelv.” 
(Abst.,  pp.  865,  866,  868,  869,  870.) 

Theodore  E.  Burton  {Ahst.,  p.  182,  et  seq.). 

“My  age  is  56,  residence,  Cleveland;  occupation,  attorney. 

“I  am  a member  of  Congress;  I have  been  a member  of 
Congress  consecutively  since  1895,  and  also  from  1889  to  1891 
(25  years).  Since  1895  I have  been  assigned  to  the  River  and 
Harbor  Committee,  and  have  been  chairman  of  that  commit- 
tee since  December,  1898.  I have  made  a study  of  the  rivers 
and  harbors  of  the  United  States  necessarily  in  connection 
with  my  position,  in  preparation  of  river  and  harbor  bills  and 
hearings,  and  have  given  considerable  amount  of  attention 
here  at  Washington.  I have  visited  most  of  the  leading  rivers 
of  the  United  States  and  a considei*able  number  of  the  niinoi- 
streams. 

“I  was  in  Europe  for  four  months  at  one  time,  investigating 
river  navigation.  I wmnt  to  Europe  especially  to  study  water 
transportation.  1 have  been  identified  for  about  a year  past 
with  the  Inland  Waterways  Commission,  appointed  by  the 
President,  consisting  of  nine  members.  1 w^as  chairman  of 
the  Commission,  made  so  by  direction  of  the  President,  and 
also  by  the  formal  confirmation  of  the  niembers. 

“I  have  made  a considerable  study  and  examination  of  tlie 
rivers  and  harbors  and  means  of  transportation  in  the  United 
States. 

“They  would  include  a pretty  large  list  of  rivers:  The 
Penobscot,  Merrimac,  Hudson,  Delaware,  Patabsco  and  Janies, 
the  Inland  MMter  Route  on  the  east  side  of  North  Ckirolina, 
the  Congaree,  Santee  and  MTiteree  in  South  Carolina,  the 
Savannah,  the  St.  Johns,  the  Alabama,  the  Coosa,  the  Black 
Warrior,  the  Warrior,  the  Tennessee,  the  Cumberland,  the 
Atchafalaya,  the  Sabine,  the  Neelies,  the  Trinity,  the  Brazos; 
and,  of  course,  the  larger  rivers,  the  Ohio,  and  tlie  Mississijipi ; 
and  on  the  Pacific  Coast,  the  San  Joaquin,  and  the  Sacra- 
mento, the  Columbia  and  the  Snake. 


‘M  liavo  visitoA  those  (lifrorent  rivers  with  a view  to  their 
examination  and  study  witli  refereru'e  to  their  improvement 
hy  tlie  (lovernment,  and  for  a study  of  tlie  general  problems, 
dliere  are  some  Jiiinor  rivers  which  I have  visited  and  which 
1 have  not  mentioned  in  the  list  just  given. 

have  seen  the  J)es  Plaines  Kiver  in  Illinois,  though  I 
have  never  l)een  on  a boat  on  it.  \ have  seen  it  at  a place 
where  the  Drainage  Canal  empties  its  water  into  the  river, 
and  upon  a course  where  it  parallels  the  Drainage  Canal, 
though  that  is  the  diverted  channel — the  artificial  channel 
alongside. 

^‘As  to  what  constitutes  a navigable  river,  of  course,  there 
are  a number  of  definitions  that  you  can  find  in  a legal  dic- 
tionary, but  really  defined  it  is  a river  which  can  be  utilized 
for  the  profitable  transportation  of  commodities  of  commerce 
by  boats  or  otherwise.  I do  not  think  you  can  fix  any  standard 
as  to  what  volume  of  commerce  would  be  necessary  to  have 
on  a river  to  constitute  it  a navigable  stream. 

‘‘In  1902  I prepared  a list  of  the  rivers  in  the  country  which 
carry  respectively  less  than  50,000  tons,  and  less  than  100,000 
tons,  or  a traffic  worth  less  than  one  million  dollars — and  this 
is  perhaps  wandering  a little — made  a comparison  with  minor 
railroads.  There  are  some  streams  that  are  under  improve- 
ment and  profitably  navigated  that  do  not  carry  more  than 
ten  thousand  tons  a year,  or  even  less. 

‘ ‘ Whether  a river,  which  was  capable  of  floating  a boat  that 
would  carry  a bigger  load  of  freight  than  could  successfully 
be  hauled  by  wagon,  was  navigable — depends  somewhat  upon 
the  topography  of  the  country  and  the  course.  Generally 
speaking,  I would  say  that  the  capability  for  carrying  a load 
in  competition  with  other  available  means  of  carriage  would 
render  the  navigation  of  a river  profitable,  whether  by  wagon 
or  in  any  other  way.  You  can  even  conceive  of  competition 
by  carrying  on  the  back,  as  they  do  on  the  road  from  Vera 
Cruz  to  Mexico.  This  is  the  best  known  road  in  the  new 
world,  and  for  a part  of  the  way,  it  is  impossible  to  go  with 
teams.  That  would  be  an  extreme  case — ^where  navigation 
competes  with  carriage  other  than  by  vehicles. 

“It  is  not  necessary  for  a river  to  be  capable  of  being  navi- 
gated by  boats  carrying  freight  for  commercial  purposes  the 
entire  year  in  order  that  it  shall  be  regarded  as  a navigable 
river.  It  is  not  necessary  for  a river  to  be  navigable  through 
its  length  in  order  to  be  a navigable  waterway ; partly  because 
detached  reaches  may  be  available  for  navigation  and  the  ob- 
stacles may  be  removed ; partly  because  you  must  take  a river 
as  an  entirety,  and  in  maintaining  the  regimen  or  the  flow  it 
is  necessary  to  control  the  whole  river,  including  those  por- 
tions in  which  there  are  obstacles  by  reason  of  rapids,  as  well 


as  i.iioso  portions  wliero  ilio  sIo[)e  ol'  tlio  r‘ivor  is  suoli  as  to 
roiider  the  navigatioa  of  the  river  diffieiilt  or  irnpossi[)le. 

“It*  obstructions  appear  in  parts  ol*  a river  f)y  means  of 
boulders  in  tlie  water,  or  rapids  in  the  river,  those  facts  do 
not  destroy  the  navigable  character  of  the  river;  particularly 
because  capability  is  a test,  rather  than  actual  use,  and  partly 
for  the  reason  I have  already  stated,  that  you  must  take  the 
river  as  a whole;  and  for  securing  the  proper  flow  in  those 
sections  which  are  navigable  without  improvement  you  must 
also  take  into  account  and  have  control  over  the  portions 
which  are  not  navigable  without  treatment. 

^‘The  Columbia  liiver  is  a navigable  river.  There  is  a por- 
tion of  that  river,  relatively  midway  in  its  navigable  part, 
called  ^The  Dalles,’  through  which  boats  do  not  pretend  to 
pass.  There  is  another  obstacle  between  ‘The  Dalles’  and  the 
mouth  of  the  Willamette,  and  then  at  Priest  Papids  and  a 
number  of  other  places  there  are  obstacles  in  the  way  of  rap- 
ids. Obstacles  such  as  the  ones  just  mentioned  do  not  take 
from  a river  its  navigable  character.  Elvers  are  profitably 
navigated  on  a draft  of  20  inches  or  even  less. 

“The  Tar  Eiver  in  North  Carolina  has  only  20  inches.  Then 
on  the  rivers  in  the  cotton  country,  between  the  Mississippi 
and  the  Atlantic,  there  are  boats  which  carry  cotton  and  other 
commodities  profitably  on  a draft  of  sixteen  inches,  though 
the  rivers  at  certain  seasons  have  greater  depth  and  the  boats 
can  draw  more  than  that.  Take,  for  instance,  the  Ocmulgee, 
the  Oconee,  the  Coosa,  the  Alabama.  There  is  a river  in  the 
State  of  Delaware  known  as  Smyrna  River,  the  original  depth 
of  which  was  2 1/2  feet.  It  has  now  been  deepened  until  it  is 
considerably  more  than  that.  The  Tennes'see,  from  Chatta- 
nooga to  Knoxville,  at  times  does  not  have  a depth  of  more 
than  eighteen  inches,  and  boats  occasionally  are  used  on  that 
river  on  a draft  of  not  more  than  eighteen  or  even  sixteen 
inches. 

******* 

“As  to  the  Des  Plaines,  I take  the  question  as  this:  A min- 
imum depth  of  eighteen  inches  for  at  least  three  months  of 
the  year,  and  a width  varying  from  sixty  feet  to  a (piarter  of 
a mile.  I would  say  it  is  navigable. 

“Interrogatory  34:  If  in  the  Des  Plaines  River  there  are 
rapids  in  places,  and  boulders  or  stone  on  the  rapids,  would 
that  fact  take  the  river  out  of  the  list  of  navigable  rivers?  A. 
Not  necessarily.  It  would  depend  somewhat  upon  what  share 
of  the  river  was  made  up  of  rapids,  and  what  share  of  channel, 
with  a slope  not  too  great  for  convenient  navigation. 

“The  method  of  treating  or  improving  a river  where  there 
are  stones  or  boulders  in  the  river’s  course  is,  well,  there  are 
quite  a number  of  ways;  one  is  to  take  out  the  rocks  or  the 


()l)sta(*les.  ^riiat,  however,  frecjuently  lets  out  tlie  pool  above, 
and  while  it  does  away  with  tlie  ra|)ids  at  the  obstruction  cre- 
ated by  the  i-ocks,  it  diniiiiishes  the  level  of  the  river  in  a por- 
tion that  is  navigat)le.  Of  course,  if  it  is  a mere  detached 
ro(‘k,  the  way  is  to  pick  it  out,  blast  it,  or  remove  it  in  some 
other  way;  anothei*  is  by  tlie  construction  of  what  are  called 
‘wing-  dams’  going  out  at  i*ight  angles  to  the  bank  at  the  side 
to  narrow  the  channel  of  tlie  river.  That  does  not  necessarily 
overcome  the  rapiids.  Still  another  way  and  the  one  that  is 
most  effective,  is  the  construction  of  locks  and  dams.  \ would 
say  that  the  imiirovements  of  such  rivers  as  have  been  im- 
proved have  rendered  them  more  valuable  as  navigable 
streams.  Of  course  there  are  a great  many  rivers  which  have 
not  been  ini})roved  by  the  United  States  (xovernment.  If  you 
take  all  the  streams  which  are  styled  rivers,  a majority  of  them 
have  not  been  improved.  Nearly  all  the  rivers  of  the  United 
States  tiiat  are  actually  being  navigated  have  been  improved 
in  one  or  more  of  the  methods  I have  suggested.  I did  not 
stay,  I should  say  here,  all  the  methods  of  improvement. 
Other  ways  of  inpiroving  are  by  wing  dams,  longitudinal  dams 
and  dredging.  These  are  the  principal  means  employed.  Of 
course,  where  it  is  a great  alluvial  stream,  the  protection  by 
revetment  to  prevent  the  washing  out  and  where  there  are 
great  floods,  levees  or  other  methods.  The  matter  of  improve- 
ments of  rivers  and  harbors  by  the  Government  of  the  United 
States,  that  is  to  say,  the  (question  of  whether  they  shall  be 
improved  or  not,  is  a question  that  is  primarily  submitted  to 
the  Committee  of  the  House  of  Representatives,  of  which  I am 
the  chairman. 


Cross  Exam  in  atl on. 

“Q.  Suppose  a river  cannot  be  used  for  profitable  com- 
merce in  competition  with  other  means  of  transportation  un- 
less improved  largely  throughout  its  length,  would  you  con- 
sider that  to  be  a navigable  river! 

‘U\.  I would  consider  that  navigable. 

^‘In  actual  practice  I should  say  you  will  hardly  ever  find 
such  a stream.  A river  will  be  navigable  in  a certain  portion 
of  it,  say  -1  miles  here,  then  there  is  an  obstacle;  then  2 
miles,  then  there  is  another  obstacle.  Now,  these  separate 
stretches  or  reaches  of  river  can  no  doubt  be  navigated,  and 
that  makes  it  a navigable  stream ; but  I would  make  the  defini- 
tion broad  enough  to  include  a stream  which  can  be  rendered 
navigable  by  improvement.  It  is  hard  to  say  whether  it  is  a 
legal  proposition.  My  experience  has  been  so  combined,  so 
made  up  of  study  of  actual  physical  conditions  of  the  rivers, 
their  navigability,  the  uses  to  which  they  are  applied,  with 
the  legal  proposition  or  a question  of  fact.  Under  my  defini- 


:J89 

tion  all  streams  are  not  praeti(*ally  navigahU;  sti’earns;  unless 
it  promises  retiirns  for  tlie  money  invested  in  its  improvement, 
I should  not  say  that  river  was  a navigable  one.  It  is  true 

that  is  a praetieal  view  to  take  of  it. 

******* 

Interrogatory  43rd:  Well,  suppose  the  Des  Plaines  Piver, 
of  whieli  Mr.  Reeves  has  asked  you,  is  18  miles  long  from 
Lockport  to  its  mo'uth,  and  that  it  would  take  at  least  three 
locks  and  dams  to  make  that  river  capable  of  navigation, 
actual  navigation,  would  heights  of  eighteen,  twenty-one  and 
twelve  feet,  lifts  at  the  locks,  that  river  having  a fall  in  those 
eighteen  miles  of  about  sixty-six  feet,  being  an  average  of 
about  four  feet  per  mile,  and  the  river  being  paralleled  by  the 
Illinois  and  Michigan  Canal,  used  for  purposes  of  transporta- 
tion and  by  three  ti'unk  railways — ^would  you  say  that  was  a 
navigable  stream? 

MHiat  is  the  depth  of  pools  that  would  be  created! 

^WouNSEL  FOR  DEFENDANT.  That  would  be  somewhere  be- 
tween twelve  and  fourteen  feet. 

I would  say  that  would  be  navigable,  most  certainly, 
think  it  would  be  profitable  to  do  that  work  for  the 
purpose  of  navigation.  There  are  rivers  in  Prance,  where 
there  are  locks  every  half  mile.  You  must  bear  in  mind  that 
on  so  comparatively  a short  stretch  as  that,  that  difficulty  of 
handling  at  the  beginning  and  the  end  of  the  railway,  and  of 
the  maintenance  of  a canal — canals  can  never  be  made  equal 
to  a natural  stream  unless  you  make  them  abnormally  wide^ — 
would  cut  a very  consideralhe  figure,  and  navigation  would 
be  a profitable  means  of  transportation.  Of  course  the  rate 
on  a railroad  would  be  very  much  higher  per  ton  mile  for 
such  a distance  than  it  would  l)e  on  a river — both  the  actual 
rate  charged  and  the  actual  expense.  Whether  or  not  this 
river  in  its  natural  state  or  in  its  ])resent  state,  is  capable 
of  navigation  for  the  purpose  of  useful  commerce,  would  de- 
pend somewhat  on  the  slope  and  the  length  of  the  pools  which 
are  not  impeded  by  rapids.  Tt  has  not  been  stated  how  long 
those  pools  are.  The  facts  have  not  l)een  sufficiently  stated  to 
me  to  ex])ress  any  o])inion  as  to  whether  the  river  is,  or  is  not 
navigable;  I would  say  if  there  were  three  obstacles  in  a dis- 
tance of  18  miles,  it  would  de})end  on  the  length  of  the  rapids, 
or  extent  of  the  obstacles  at  those  places,  but  there  would  be, 
at  any  rate,  navigation  on  the  detached  |)ortions,  if  the  ob- 
structions by  rapids  or  other  obstacles,  are  not  unusually  long. 
It  would  be  capable  of  navigation  over  the  portions  where  the 
obstacles  do  not  prevent.  An  ordinary  rapid  is  not  an  insup- 
erable ])reveDtion  to  navigation.  The  rule  as  laid  down  in  the 
text  books  of  seventy-five  years  ago,  was  that  al)out  1 1/4  feet 
per  mile  was  the  maximum  consistent  with  convenient  naviga- 


iioii,  l)iit  siii(!e  then  inetliods  liave  l)een  devised  to  overcome 
rapids,  l^'ake  it  at  tlie  iron  gates  of  the  Danube — there  the 
descent  is  considerably  more  than  tliat.  Just  above  the  boun- 
dary line  of  ITiingaria  and  Houmania,  Servia  being  on  the 
opi)osite  side,  Hnngaria  taking  the  responsibility  and  taking 
the  lead,  they  liave  fixed  post  and  a drum  on  the  boat,  and 
wire  rope  that  hauls  the  boat  by  power  in  itself  over  the  rap- 
ids. The  slope  of  those  rapids  in  places  must  be  4 ft.  or  more 
to  the  mile.  I think  I am  conservative  in  stating  that. 

‘‘As  to  this  Des  Plaines  Kiver,  my  impression  is  for  the 
whole  river,  a descent  of  100  ft.  in  60  miles. 

“Interrogatory  53rd:  Now,  Mr.  Burton,  assuming  that  be- 
tween Jackson  Street  and  McDonough  Street  in  the  City  of 
Joliet,  a distanct  of  about  5,000  feet,  nearly  a mile,  there  is  a 
fall  of  9 ft.  or  about  1.8  ft.  per  1,000  ft.,  during  the  low 
water  season,  and  during  high  water  season,  there  is  a fall  of 
about  2 ft.  per  1,000  ft.  Now,  on  18  inches  of  water,  which 
was  the  minimum  depth  given  in  the  hypothetical  question 
that  Mr.  Eeeves  asked  you — do  you  say  that  boats  carrying 
commerce  could  navigate  up  and  down  that  stretch  of  one  mile 
without  the  improvement  of  it! 

“A.  I do  not  think  so,  if  it  is  say  only  18  inches  deep. 

“Interrogatory  54th:  Well,  suppose  it  was  2 feet. 

“A.  I do  not  think  so.  That,  however,  would  not  take 
away  the  quality  of  the  stream. 

“Whether  the  boats  could  be  navigated  up  the  stream,  as 
it  now  exists,  well,  it  would  be  very  difficult,  if  not  impossible. 
I have  come  so  to  consider  the  legal  question  and  the  practical 
questions  together,  that  it  is  pretty  difficult  to  separate  the 
two. 

«=#***** 

“Interrogatory  59th:  "Well,  now,  I will  ask  you  another 
hypothetical  question.  There  is  a fall  between  Lockport  and 
Brandon’s  Bridge,  a distance  of  7 miles,  of  34  ft.,  or  about 
5 ft.  per  mile.  Then,  there  is  about  5,000  ft.  between  Jack- 
son  Street  and  McDbnough  Street,  with  a 9 foot  fall  in  that 
5,000  ft.  Then  from  McDonough  Street  to  Brandon’s  Bridge, 
there  is  a fall  of  3.75  ft.  per  2,000  ft.  Then  a little  below 
that,  along  Treat’s  Island,  for  a stretch  of  2,000  ft.,  there 
is  a fall  of  5.5  ft.  A little  below  that  at  a point  called  Smith’s 
Bridge,  for  a stretch  of  3,000  ft.  there  is  a fall  of  2 ft.,  and 
a few  miles  below  that,  at  Dresden  Heights,  where  this  dam 
of  the  Economy  Light  & Power  Company  is  in  process  of 
construction,  for  a stretch  of  2,000  ft.,  there  is  a fall  of  3.2 
ft.  Now,  with  these  falls,  what  do  you  say  as  to  the  capa- 
bility of  that  river  being  navigated  in  its  present  state,  from 
the  mouth  to  Lockport,  for  the  purpose  of  useful  commerce! 

“A.  AVell,  it  would  be  very  questionable  whether  it 


:v.)\ 

would  1)0  navigatod  for  that  whole  distaiu'o.  11*  I may  ox})ross 
ail  opinion,  that  would  not  take  away  the  (jiiality  of  the  stream 
as  a iiavigable  stream,  if  ])art  of  the  way  there  are  jiools  that 
are  readily  navi  gable,  and  there  is  a terminal  point  lieyond 
the  end  of  the  yiool  that  by  treatment  eould  be  made  navigable 
— it  is  still  a navigable  stream  for  the  whole  distance. 

mean  the  Federal  Government  would  have  jurisdiction 
over  it,  particularly  because  it  would  he  necessary  to  control 
that  upper  portion  to  make  sure  that  the  water  flowed  without 
obstruction  through  the  lower  portion.  It  seems  to  me  this 
is  a question  of  fact,  as  well  as  one  of  law.  That  is,  it  would 
readily  appear  that  if  the  jurisdiction,  which  has  control  of 
the  navigability,  did  not  have  supervision  over  this  portion, 
from  which  the  water  means  comes  to  furnish  the  normal 
depth  below,  the  jurisdiction  would  be  futile.  You  presented 
several  propositions  relating  to  different  portions  of  the 
streams,  different  conditions  in  these  different  reaches,  that 
are  widely  different.  On  some  of  them  I would  say  that  it 
is  difficult,  if  not  impossible,  for  a boat  to  go  up  without  in 
some  way  improving  the  stream,  and  on  others  not  so  difficult. 
It  would  not  be  so  difficult  to  go  down,  but  that  also  would 
be  difficult,  and  in  some  places  probably  impossible,  consistent 
with  safety. 

^^The  limit  of  slope  for  ]:)nrposes  of  useful  navigation  would 
depend  on  two  or  three  things;  first,  the  depth  of  the  stream; 
second,  the  width;  third,  the  course  of  the  river,  that  is, 
whether  straight  or  crooked.  I have  not  the  exact  figures  in 
mind,  but  I think  on  a slo})e  as  mnch  as  8 or  10  feet,  boats 
are  drawn  n})  stream  by  those  devices  which  I have  suggested 
— some  point  to  which  a ro])e  oi-  chain  can  be  attached  and 
a drum  with  power  on  the  l)oat.  Well,  the  Fib  is  one  river 
in  which  the  above  method  is  tried  as  much  as  any.  There 
the  depth  at  low  water  seasons  is  not  very  great,  I should  say 
about  3 feet.  It  is  not  a very  difficult  task  to  go  Tip  a slope 
which  is  only  a foot  to  a mile. 

There  are  some  very  steep  slopes  in  the  itlione  Kiver.  I 
am  not  positive  as  to  the  slopes  of  those  European  rivers, 
but  I am  quite  positive  that  4 foot  slopes  can  be  used  for 
navigable  purposes,  for  open  water  navigation  treated  per- 
haps l)y  lateral  dams  or  dikes.  These,  however,  increase  the 
difficulty  unless  they  are  located  at  a ])lace  just  at  the 
point  where  the  flow  of  the  river  is  more  smooth  without  so 
much  descent.  As  to  the  slopes  of  the  southern  rivers,  well, 
take  part  of  the  middle  section  of  the  Tennessee,  that  is  2.75 
feet  to  the  mile.  The  fall  from  Knoxville  to  Chattanooga  is 
on  the  average  about  one  foot  to  the  mile,  though  in  some 
places  it  is  very  materially  more  than  that.  I should  think 
the  maximum  slope  where  there  is  navigation  in  those  rivers. 


would  not  1)0  ^Toatoi*  than  4 foot.  Take  the  Allegheny — that 
has  2.2  feet  over  long  distanee,  and  in  some  j)laces  more  and 
in  som(‘  places  less,  of  (*ourse,  2 to  2 feet  to  the  mile.  In  the 
upper  portion  of  tlie  Monongahela,  that  is,  that  portion  that 
is  in  West  Virginia,  it  is  about  2 feet.  Tliat  is  the  average 
des('ent,  of  ('ourse.  There,  as  in  the  other  ease,  there  is 
sometimes  more  and  sometimes  less.  As  to  knowing  any 
river  where  navigation  is  actually  carried  on  and  where  the 
slope  is  more  tlian  4 feet  to  tlie  mile,  wliy,  for  down  stream 
navigation,  the  St.  Lawrence  at  the  rapids  must ‘he  more  than 
that.  I am  not  ])ositive,  however,  as  to  the  figures.  Fn  some 
poidions  of  the  Tennessee,  between  Chattanooga  and  Kiver- 
ton,  it  must  ])e  more  than  4 feet  at  different  stretches  of 
water.  Commerce  is  carried  on  ui)  stream  to  no  great  extent 
in  the  St.  Lawrence.  They  go  down  through  the  open  river 
with  some  boats,  and  go  up  through  a canal.  I think  there 
are  records  that  give  the  exact  slopes  there  of  those  Euro- 
pean rivers. 

^^Interrogatory  72nd:  Assuming  that  in  the  Des  Plaines 
Liver,  from  Lockport  to  its  mouth,  a distance  of  about  18 
miles,  there  is  one  pool  of  water  about  5 1/2  miles  in  length, 
and  another  pool  about  3 miles  in  length,  making  altogether, 
about  9 1/^2  miles  of  pool,  and  that  the  remainder  of  the  river, 
between  Lockport  and  its  mouth,  about  9 miles,  consists  of 
stretches,  of  rapids,  of  slopes,  that  I have  mentioned  here, 
do  you  say  that  that  river,  in  its  present  state,  without  im- 
provement, is  capable  of  being  used  for  profitable  commerce? 
A.  It  is  pretty  hard  to  answer  that  question,  yes  or  no. 
If  you  say  for  the  whole  stretch  of  the  river,  I would  say 
‘no’.  If  you  say  for  those  portions,  I would  say  ‘yes’  and 
would  add  that  the  navigating  of  those  portions  gives  a char- 
acter to  the  vdiole. 

“Some  of  tliese  rapids  to  which  I have  called  your  atten- 
tion, extend  2 or  3 miles  in  lengtli ; that  is,  in  the  first  5,000 
feet,  the  descent  is  9 feet,  then  comes  a stretch  of  2,000  feet 
where  the  descent  is  3.75  feet;  then  comes  another  stretch 
where  the  descent  is  5.5  feet  for  2,000  feet.  That  would  be 
over  10  feet  }mr  mile — 11  feet  per  mile.  And  then  comes 
another  stretch  of  3,000  feet,  where  the  descent  is  2 feet  for 
the  3,000  feet.  A.  Well,  if  the  stream  were  without  ob- 
stacles, was  fairly  straight,  that  would  not  do  away  with  the 
possibility  of  going  through  it  with  boats.  The  other  por- 
tions that  you  mention  is  11  feet,  I should  think  would  not  be 
navigable  with  any  device  now'  in  use. 

“The  portion  6.9  feet  to  the  mile,  would  be  difficult,  if  not 
impossible.  As  to  8 feet  to  the  mile,  you  are  getting  down 
there  I think  to  the  limit;  of  course  there  is  very  rarely  a 
stream  where  for  miles  the  descent  is  uniform.  You  take  it 


:j93 

wliere  it  is  8 foot  to  tlio  niilo,  j)r()l)ul)ly  in  a poi-tion  of  it  it  will 
1)0  at  a rate  that  you  ('all  it;  at  anotlioi’  as  niuoJi  as  12,  and 
ill  aiiotlior  })i‘obal)ly  (i.  Well,  siif)pose  a strotoli  of  a iriilo 
or  1/2  mile  in  tlio  rivoi*,  that  is  probably  iiniforiii  of  8 loch 
to  the  mile;  to  carry  on  nsefnl  ('onnnor(*e  would  be  expensive, 
but  if  tliere  is  a i)art  of  the  stream  wliicli  above  the  pool  conhl 
be  rc^'adily  navigated,  that  would  not  in  my  opinion  take  away 
the  navigability  of  the  stream. 

‘‘Interrogatory  83rd:  Would  yon  not  say,  Mr.  Burton,  that 
the  fact  that  all  those  dams  were  constructed  in  the  river,  is 
persuasive  evidence  that  the  stream  was  not  capable  of  navi- 
gation for  useful  commerce?  A.  No,  T would  not  decidedly. 
T have  known  instances  in  which  persons,  even  by  Acts  of 
Congress,  have  managed  to  sneak  in  a dam  where  they  ought 
to  be  barred  from  doing  so.  I remember  one  instance  in 
which  it  was  done  in  the  Tennessee  Eiver,  and  the  next  winter 
the  people  who  were  advocating  it,  wanted  it  repealed.” 
(Abst.,  pp.  182-194.) 

It  will  be  noted  here  that  this  eminent  expert  used  the  (lualifi- 
cation  of  “profitable  commerce”  in  the  definition  which  he,  as 
chairman  of  the  River  and  Harbor  Committee,  has  employed  in 
testing  the  numerous  schemes  which  have  been  brought  before 
his  committee  for  improving  streams.  He  said  in  particular: 
“You  must  take  into  account  that  I looh  'upon  it  from  the  stand- 
point of  the  benefits  derived  from  improvements,  the  expense  and 
difficulty  of  improvement/^  (Abst.,  ]).  188.) 

This  is  a most  wholesome  standard  to  he  enpiloyed  by  the  chair- 
man of  the  River  and  Harbor  A])])ropriations  (k)mmittee  in  ])ro- 
teeting  the  public  treasure  against  exti'avagant  demands.  The 
firmness  with  which  Chairman  Burton  lias  ap})lied  tliis  test,  and 
defeated  such  demands  and  confined  the  ex])enditure  of  ])ublic 
money  to  'profitable  cliannels,  during  the  ten  years  and  upwards 
that  he  has  been  chairman  of  the  committee,  has  earned  him  much 
honorable  obli(jUv  from  the  (‘amp  followei's  and  log  rollers. 

This  test  is  one  more  sevei'e  and  ])articular  than  that  of  the 
law,  and  he  repeatedly  stated  that:  “My  experience  has  been  so 
combined,  so  made  up  of  study  of  actual  [ihysical  conditions  of  the 
rivers,  their  navigability,  the  uses  to  which  they  are  ajiplied,  with 
the  legal  proposition — it  is  pretty  difficult  to  say  whether  I regard 
that  as  a legal  proposition  or  a (piestion  of  fact.”  (Abst.,  p.  187.) 

The  State  welcomed  the  testimony  of  so  eminent  an  authority. 


even  when  applying-  a standard  higher  than  that  recjuired  by  the 
law,  and  found  liis  testimony  sustaining  the  navigability  of  this 
river,  even  when  judged  by  this  more  rigid  standard. 

WILLIAM  LORIMEK. 

William  Lorinier  is  also  a member  of  the  Rivers  and  Harbors 
Committee,  and  for  several  years  has  made  close  study  of  the 
waterways  of  the  country,  and  of  Illinois  and  the  Des  Plaines 
River  in  particular. 

He  said: 

“I  am  acquainted  with  the  Des  Plaines  River.  I have 
given  it  study  for  about  12  years.  I have  known  it  for  3^ 
years.  It  is  a navigable  stream.  (Abst.,  p.  195.) 

navigable  stream  is  a river  that  is  capable  of  bearing 
boats,  upon  which  can  be  transported  commerce,  deep  enough 
and  wide  enough,  with  water  enough.  As  to  what  minimum 
depth  of  water  in  the  channel  of  a river  affording  from  60 
feet  in  width  to  a quarter  of  a mile  in  high  water,  boats  can 
be  built  to  bear  commerce  over  water  that  draw  2 feet  in 
depth.  I know  that  in  my  personal  experience.  From  the 
study  and  investigation  that  I have  had  of  the  navigable 
waters  of  the  United  States,  in  connection  with  my  official 
duties,  I have  known  of  navigation  on  the  Tennessee  River, 
parts  of  it  at  times  was  of  less  than  2 feet  of  water.  The 
fact  that  there  may  be  for  a stretch  in  the  river,  rapids  or 
stone  or  rock,  does  not  destroy  the  navigable  character,  of 
the  stream.  Basing  my  opinion  on  my  experience  and  ab- 
sorption on  the  one  hand,  and  my  study  of  Rivers  and  Har- 
bors, in  the  course  of  my  work  as  a member  of  the  Com- 
mittee on  Rivers  and  Harbors  of  Congress,  the  fact  that  a 
portion  of  a river  contains  rapids  or  boulders,  does  not  in 
any  sense  destroy  the  navigable  character  of  the  river.  If 
a river  has  sufficient  water  to  carry  boats  a part  of  the  year, 
say  three  or  four  months  only,  exclusive  of  the  time  that 
the  river  may  be  frozen  over,  that  state  of  affairs  does  not 
destroy  the  navigable  character  of  the  river. 

^Ht  is  a navigable  stream  because  it  can  be  navigated  by 
boats  that  are  capable  of  carrying  the  commerce  of  the 
country.  I know  that  first  of  all,  because  I have  been  over 
the  stream  during  my  life  time  practically  all  the  way  from 
its  mouth  to  the  Town  of  Wheeling,  and  I know  that  between 
the  Illinois  River  and  Lockport,  there  is  a minimum  depth  be- 
tween the  low  standard  stages  of  the  river,  certified  to  by 
the  engineers  that  made  tlie  survey,  over  the  rapids  to  the 
mouth  of  the  river,  of  not  less  than  3 feet  of  water,  and  over 


the  i‘a[)i(is  at  ^Freat’s  Island,  of  not  less  than  2 feed  of  water, 
and  tliat  only  for  a distaiu^e  of  ahont  500  feet  betwe(ni  those 
two  rapids,  there  is  a,  de})tli  of  water  all  the  way  from  4^ 
feet  to  15  feet.  Jleyond  Treat’s  Island,  n[)  to  and  tliron^^h 
Lake  Joliet,  tliere  is  a depth  anywhere  from  4 feet  to  17 
feet.  It  is  all  the  way  from  say  125  feet  to  1500  feet  wide. 
That  width  of  1500  feet  is  in  Lake  Joliet,  and  between  Treat’s 
Island  and  Lake  Joliet,  it  is  more  than  1500  feet  wide  irt 
some  places.  The  nearest  point,  according  to  my  recollec-r 
tion,  is  round  Treat’s  Island,  what  might  be  calied  right  there 
according  to  the  position  you  are  viewing  the  river  from, 
either  by  the  north  side  of  the  river  or  the  west  side,  there 
is  a big  considerable  turn  right  there.  I haven’t  any  doubt 
that  a boat  we  are  all  familiar  with,  the  Illinois  Fish  Boat, 
could  be  so  equipped  with  engines,  as  to  navigate  all  the 
way  from  St.  Louis  to  Lake  Joliet.  I got  the  information 
as  to  the  depth  of  water  over  the  rapids,  from  the  report  of 
the  engineers,  the  one  making  the  survey  from  Lockport  to 
St.  Louis,  that  was  published  in  1905.  That  is  the  only  sur- 
vey for  the  14  foot  waterway.”  * * * 

‘L\s  to  supposing  the  slope  at  Dresden  Heights  to  be  1.6 
feet  per  1,000  feet,  or  8 feet  to  the  mile,  I have  gone  over 
the  ground  there  in  the  low  water  stages  of  the  Desplaines 
River,  and  there  is  no  doubt  in  my  mind  that  you  can  take 
boats  up  the  Desplaines  from  Dresden  Heights.  Suppose 
the  slope  to  be  8 feet  to  the  mile,  as  shown  by  this  report 
of  the  Engineei's  of  the  United  States  (Government,  boats  for 
the  purpose  of  profitable  navigation  could  be  run  over  thosi 
rapids  by  cordelling,  without  any  doubt.  That  is,  they  could 
be  so  expiipped  that  they  could  be  built  u])  conveniently  and 
rapidly.  I have  never  heard  of  it  being  done,  but  I know 
enough  about  machinery  to  know  that  they  could  be  equipped 
for  that  y)^ii’Pose  and  operate  profitably.  I have  never  run 
a boat  line,  but  from  what  I know  of  rail  rates  and  wate’ 
rates,  I have  no  doubt  that  goods  could  be  transported  from  Si. 
Louis  to  Joliet  by  water,  and  (mrdelling  over  those  rapids 
that  we  are  discussing,  for  less  than  you  can  take  it  there  by 
rail,  and  therefore  it  is  ])rofitable.  As  to  how  you  would  get 
over  the  dam  at  Marseilles,  the  Illinois  River  is  susceptible 
of  im|)rovement,  so  you  could  build  a lock  there  and  carry  it 
out  through  the  lock.  The  Illinois  River  is  under  im})rove- 
ment.  If  it  were  improved  at  such  points  as  needed  improve- 
ment, of  which  Marseilles  is  one,  boats  might  be  run  up  tlie 
river.  For  easy  navigation,  there  should  be  improvement  all 
the  way  up  the  Illinois  and  the  Desplaines  Rivers  to  Joliet. 
Boats  could  not  profitably,  for  a commercial  ])urpose,  in  the 
condition  of  things  as  they  now  exist,  without  any  improve- 
ment, be  run  from  St.  Louis  to  Joliet.  There  would  have  to 


l)e  some  iniprovemeiit  in  tlie  Illinois  River.  Well,  now  yon 
put  the  (piestion  wlietiier  oi-  not  it  would  be  ])i*ofita})le,  and  1 
(‘an  only  answer  that,  based  again  on  the  statement  I made 
a little  wliile  ago,  on  the  difference  between  the  railroad  and 
th(‘  water  rates. 

“If  the  Illinois  River  w^ei'e  improved,  so  as  to  make  it  pos- 
sible for  boats  drawing  24-  inches  of  water,  to  pass  tlirougli 
the  river  into  the  Desplaines  River,  I have  no  doubt  about  it. 
There  is  not  any  doubt  but  what  a boat  drawing  24  inches  of 
water,  could  go  from  the  mouth  of  tlie  Desplaines  River  up  to 
floliet  now;  well,  to  the  foot  of  the  rapids  at  Joliet,  that  is, 
to  Brandon’s  Bridge,  that  neighborhood.  As  to  a boat  draw- 
ing 24  inches  of  water  going  over  the  rapids  at  the  mouth  of 
the  river  at  Treat’s  Island,  the  proof  of  that  is  the  depth  of 
the  water,  J feet.  Now,  if  it  is  admitted  that  a boat  can  be 
cordelled  over  the  ra])ids,  and  that  I believe,  then  for  the 
balance  of  the  way  there  is  plenty  of  water.  There  is  8 to 
15  feet  in  the  first  stretch,  and  4|  feet  to  17  feet  in  the  sec- 
ond stretch,  to  the  head  of  Lake  Joliet,  a distance  of  6 miles. 
In  other  words,  there  is  in  those  two  reaches,  a depth  of  from 
41  to  17  feet,  over  a stretch  of  about  9 miles  of  water.  Now, 
there  is  depth  enough  there  over  those  rapids,  for  a boat 
drawing  24  inches,  to  pass  over. 

“To  make  it  a first  class  navigable  stream,  there  must  be 
locks  and  dams,  and  my  opinion  is,  the  locks  and  dams  can  be 
constructed  without  any  difficulty  at  all,  and  when  I say  that, 
I mean  to  say  I know  it  can  be  done.  As  to  the  state  of  the 
river  being  now  such  that  useful  commerce  can  be  carried  on, 
commerce  can  be  carried  on  from  the  foot  of  Treat’s  Island 
to  eloliet,  no  one  will  dispute  that.  As  to  whether,  if  a line 
of  boats  were  constructed  between  these  two  points,  it  will  be 
profitable  and  useful  to  the  community,  that  would  depend  al- 
together what  sort  of  commerce  it  is,  and  what  it  is  to  be 
used  for. 

“I  can  tell  you  a little  experience  I have  had  myself.  I was 
at  one  time  doing  some  work  on  the  Desplaines  River,  ai\d 
I had  a cofferdam  I was  having  a good  deal  of  trouble  with.  I 
got  a load  of  crushed  rock,  and  brought  it  down  the  Illinois 
and  Michigan  Canal,  to  a point  where  the  canal  crosses  the 
Desplaines  River,  cordelling  it  up  about  a mile.  The  reason 
we  did  that  was  because  w^e  could  handle  the  rock  cheaper 
that  way  than  any  method  we  could  devise,  so  that  for  a dis- 
tance of  6 miles,  under  the  same  conditions,  it  would  be  profit- 
able. It  was  profitable  to  us,  and  that  is  why  we  did  it.  From 
my  own  personal  knowledge  of  the  river,  I would  say  that 
the  river  was  capable  of  beiim’  used  for  commercial  ]mr])Oses. 
I know  that  you  can  use  the  Desplaines  River  from  the  Joliet 
& Eastern  R.  R.,  for  a boat  drawing  9 feet  of  water  down  to 


the  (hty  of  Joliet,  and  Foi-  the  purposes  of  1 ransportinx  store* 
ri'oin  a]iy\vli(‘re  aloiii^  up  thei’e  iu  the  uei^iihoi-hood  of  Lo(;k- 
})oi‘l,  down  through  tire  l)i*aiuage  (hiiial,  into  the  I )(isplaiu(is 
River,  to  unload  at  Joliet.  Thei'e  is  no  douht  of  its  heirp^ 
prolitable  to  transport  stone  down  that  way.  The  woi-k  I was 
doing  when  I used  that  stone,  was  lowering  the  hottoru  of  tlu^ 
Desplaines  Kiver  for  the  Sanitary  I)istri('t.” 

“As  a ineinher  of  the  Rivers  and  Harirors  Committee,  and 
on  aeeonnt  of  tlie  work  tliat  I have  been  doing,  and  tlie 
searches  that  I have  made  for  information,  I have  come  to 
the  opinion  with  reference  to  waterways,  and  that  all  mem- 
bers of  the  committee  that  I have  known,  have  thought  a 
waterway  that  is  navigable  in  part  is  navigable  in  fact,  and 
even  though  it  may  be  interrupted  by  rapids  or  perpendicular 
falls  or  sand  bars,  as  long  as  it  may  be  made  navigable,  it  is 
a navigable  waterway  of  the  United  States,  and  I know  that 
a part  of  the  Desplaines  River,  from  the  end  of  the  Sanitarv 
District  Canal,  where  they  have  a lock  that  they  can  lock 
boats  through  down  into  it  now,  is  navigable  for  boats  of  8 
feet  of  draft,  and  it  is  navigable  for  boats  that  can  carry  a con- 
siderable commerce  through  the  Desplaines  River,  into  the 
Illinois  and  Michigan  Canal,  and  connect  with  the  Illinois 
River  at  La  Salle.”  (Abst.,  pp.  195-6-7-8-9,  200,  202-3.) 

Lyman  E.  Cooley  (Ahst.,  p.  794,  et  seq.). 

We  speak  here  of  Mr.  Cooley’s  (]ualifications  to  give  an  expert 
opinion  upon  the  navigability  of  the  river.  His  training  and  ex- 
perience were  as  follow^s: 

“Graduated  as  civil  engineer,  Rensselaer,  Polytechnic, 
Troy,  1874,  1874-77  Professor  Civil  Engineering  Northwest- 
ern University  and  Associate  Editor  Engineering  News. 

“1878,  Principal  Assistant  Engineer  constructing  railway 
bridge  C.  & A.  Ry.,  across  the  Mississiiipi  River,  Glasgow, 
Missouri,  1878-84,  U.  S.  Engineer  on  improvement  of  western 
rivers. 

“Resident  Engineer  on  improvement  of  Missouri  at  Ne- 
braska City,  Nebraska. 

“Ditto  at  St.  Charles,  Mo. 

“For  two  years  General  Assistant  in  charge  of  all  works 
on  Missouri  River  from  Yankton  to  mouth  (some  13  in  num- 
ber). 

“Surveys  of  Mississippi  River  between  Cairo  and  Memphis. 

“Surveys  on  Missouri  and  reduction  of  physical  data  on 
Missouri,  Mississippi  and  other  western  rivers  and  super- 
vision of  work  thereon. 

“Nebraska  City  is  50  miles  south  of  Omaha  in  Nebraska 
and  10  miles  north  of  State  line  between  Iowa  and  Missouri. 


‘^Work  was  for  maintenance  and  improvement  of  naviga- 
tion of  Missouri,  maintenance  of  Ijanks  and  regulation  of 
stream. 

‘‘Surveys  and  pliysical  observations  of  changes  in  river 
bed,  volume  of  stream  and  stages  of  water,  involving  testing 
and  using  the  navigation  of  the  Missouri. 

“First  we  had  flat  boats  70x16,  carrying  40  to  60  tons,  pro- 
pelled by  sails,  cordefls  from  the  bank  and  sweeps.  Our  cor* 
del  ling  was  performed  by  a number  of  men  walking  along  the 
river  bank  pulling  the  boat  up  by  a long  cable  attached  to  the 
bow  of  the  boat. 

“Second  year  we  had  a steamboat  drawing  20  inches  to 
2 1/2  feet,  56  feet  long,  14  feet  wide. 

“It  would  tow  2 loaded  barges  up  stream. 

“ Currents  in  Missouri  Eiver,  generally  5 to  7 miles  an  hour. 
We  operated  this  boat  in  the  teeth  of  such  currents  through- 
out the  high  water  season  of  ’79. 

“We  had  opposite  our  work  a current  which  averaged 
throughout  the  flood  8 miles  an  hour. 

“We  performed  our  navigation  ourselves  against  that  cur- 
rent. There  were  a number  of  boats  went  up  the  river  that 
season. 

“I  measured  the  current  at  Wyoming  bluff  and  ascertained 
the  actual  mean  velocity  for  the  whole  cross  section  of  12 
miles  per  hour.  We  measured  it  in  our  boats  and  boats 
passed  up  the  river  during  that  flood. 

“The  Nebraska  City  reach  extended  some  18  miles  to  the 
Plattsmouth  reach. 

“It  was  a succession  of  bends  with  good  depths  and  interme- 
diate crossings  between  the  bends  of  shallow  depths.  One  bend, 
Copeland’s  bend,  in  high  water  spread  out  to  2 1/2  miles  and 
divided  into  a number  of  channels  in  which  the  water  was 
very  shallow  and  variable  in  depth  during  the  low  water  sea- 
son. The  usual  rule  of  depth  in  low  water  was  2 1/2  to  3 feet 
on  the  crossings,  but  at  times  we  had  depths  of  15  to  20  inches 
on  the  bars  of  Copeland’s  bend. 

“Missouri  River  bends  are  usually  3 or  4 miles  long  with 
intermediate  crossing  of  a mile  or  more  to  the  next  bend. 

“Missouri  River  is  quite  unstable.  These  bends  in  high 
water  cut  the  banks  more  or  less,  continuously  dumping  their 
loads  on  the  crossings  which  makes  a very  variable  channel 
changing  in  depth  and  location.  Pilots  navigating  it  have  to 
search  out  a new  channel  every  trip. 

“The  river  is  very  unstable,  its  bed  and  banks  consist  of 
light  alluvium  and  sands  brought  down  from  above  and  easily 
eroded. 

“In  low  water  it  was  from  500  feet  to  a mile  wide  in  some 
of  the  thin  places  on  Copeland’s  bend.  In  high  water  it  was 


from  1/4  ol*  ii  inilo  to  a niil(‘  and  a half  wi(l(^  and  ovcndlovvod 
bottom  lands  to  a ^reat  dey)tli. 

“(lonerally  s})oaking-,  in  tlio  narrow  places  500  feet  wide, 
the  water  was  deep  and  the  (airrent  eontinnons  from  shore  to 
shore  except  on  the  convex  side  where  there  was  some  shal- 
lower stationary  water.  Three-quarters  of  the  widtli  would 
be  occupied  with  a rapid  current. 

Where  it  spread  ont  to  a mile  and  a half  wide  tlie  cur- 
rent would  be  very  slack,  but  the  bars  filled  up  from  the 
erosion  of  the  bends.  These  crossings  were  dumps  and  at 
times  the  current  became  very  swift.  In  low  water  these 
narrow  channels  became  very  narrow,  only  100  feet  to  100 
yards  in  width. 

‘‘The  bars  lay  between  the  bends.  They  were  ver}^  unstable 
and  shifting  both  in  elevation  and  location.  In  low  water 
navigation  focomes  quite  difficult. 

“It  seems  the  bar  shifts  and  channel  changes  in  a day  or 
two  and  again  persist  for  weeks  in  one  locality. 

“I  have  seen  the  bars  shift  and  the  channel  change  in  the 
course  of  a day  or  two,  and  again  they  would  persist  for 
weeks  in  the  same  locality. 

“As  to  the  degree  of  the  curvature  or  the  abruptness  of 
the  change  in  direction  in  the  bends,  going  around  these  bars 
— in  some  of  these  bed  crossings  the  channel  would  pass 
from  one  side  of  the  river  to  the  other  two  or  three  times  in 
the  course  of  a mile.  It  would  be  extremely  sinuous,  so  that 
a boat  had  difficulty  in  threading  them,  might  often  flank 
itself  across  the  current  in  such  a manner  that  it  had  to  put 
out  lines  in  order  to  get  through,  or  use  the  boat  spars  for 
the  purpose  of  holding  it  in  position  until  it  could  work 
through;  to  put  out  a line  to  some  point  on  shore,  or  to  an 
anchor  at  some  distance,  100  to  500  yards,  and  work  with  the 
aid  of  the  capstan.  Sometimes  to  pull  the  boat  around;  other 
times  to  hold  it  in  position. 

“I  was  in  Nebraska  City  doing  this  work  for  two  years. 
During  that  period  I saw  navigation  going  on  on  the  Missouri 
River,  at  that  place.  There  were  a number  of  boats  passed 
up  the  Missouri  River  every  season  in  the  up  river  and  Fort 
Benton  trade  from  St.  Louis.  Usually  made  two  trips  from 
the  opening  of  the  season  up  to  August,  when  the  water  be- 
gan to  get  low,  and  some  of  those  boats  were  very  large 
boats,  capable  of  carrying  a thousand  tons  of  freight. 

“They  made  two  round  trips  to  Port  Benton,  a distance  of 
about  2,400  miles  from  St.  Louis.  The  round  trip  would  be 
about  4,800  miles,  and  there  would  be  two  such  trips  for  the 
boat  in  that  season.  They  would  carry  a thousand  tons  of 
freight  in  four  feet  of  water.  There  were  four  characteristic 
boats  that  were  in  the  Missouri  trade  at  the  time  I was  on  the 


400 


I'ivoi*:  tile  Montana,  Dakota,  the  Wyoming'  and  tlie  Tdahc, 
wlTn'li  were  45  to  48  feet  wide,  1^50  to  lioo  feet  long — in  length, 
and  with  a dejith  of  hold  of  foiii*  and  a half  to  five  and  a half 
feet,  and  they  would  run  on  12  to  14  inches  light  and  load 
down  to  four  feet,  and  thus  loaded  would  carry  about  a thou- 
sand tons  of  freight. 

“There  were  numbers  of  smaller  lioats  which  passed  up 
and  down  the  river  while  I was  at  Nebraska  City;  a charac- 
teristic size  being  from  28  to  52  feet  wide,  150  feet  long,  witli 
a depth  hold  of  three  and  a half  to  four  feet,  and  running  on 
eleven  to  twelve  inches  of  water  light,  and  loaded  two  to  two 
and  a half  feet,  and  capable  of  carrying  500  tons. 

“These  lioats  were  used  largely  in  the  upper  river  from 
Sioux  City  and  Yankton  north,  and  passed  to  and  fro  in  their 
trips  to  St.  Louis. 

“The  upper  Missouri  Liver,  referring  to  the  river  above 
Sioux  City,  was  habitually  navigated  by  these  smaller  classes 
of  boats  throughout  the  season.  The  large  boats  usually  went 
out  of  commission  in  August.  The  smaller  craft  had  200  to 
500  tons  carrying  capacity  on  two  and  a half  feet  of  water. 

“We  had  a survey  party  which  was  making  a complete  sur- 
vey of  the  Missouri  River,  whose  trips  extended  up  to  the 
Three  Forks,  above  Fort  Benton,  and  in  the  intervals  of  work 
in  the  field,  we  put  in  our  time  in  reducing  the  data  in  regard 
to  the  Missouri  River  and  other  western  rivers,  and  were  fa- 
miliar with  the  conditions  in  the  extreme  upper  Missouri. 

“As  to  conditions  prevailing  in  the  upper  Missouri  with 
respect  to  the  depth  of  water,  the  current,  and  the  actual  navi- 
gation in  the  upper  Missouri — above  Carroll,  or  at  the  mouth 
of  the  Milk  River,  some  250  miles  from  Fort  Benton,  the 
stream  is  a stream  with  a fixed  stream  bed,  a fixed  regimen, 
comparatively  speaking,  with  a number  of  rapids  which  were 
drowned  out  in  extreme  high  water,  but  in  moderate  stages 
of  water  there  were  velocities  upon  these  rapids  of  eight  to 
ten  miles  per  hour,  and  the  steamboats  at  times  had  to  warp 
over  them.  They  would  put  out  a line  up  stream  a quarter 
or  a half  mile  and  wind  up  the  rapids  with  a steam  capstan 
on  the  bow  of  the  boats  for  the  purpose  of  winding  up,  going 
up  stream;  down  stream  they  would  run  with  the  current  and 
their  own  ordinary  power. 

“I  couldn’t  say  exactly  from  memory  as  to  the  extreme 
low  water  depths,  but  the  depths  used  in  this  class  of  work 
were  from  two  and  a half  to  four  feet. 

“As  to  my  experience  in  navigation  on  other  streams,  I 
was  located  in  St.  Charles,  which  is  another  part  of  the  Mis- 
sissippi River,  for  two  years.  I was  located  one  winter  at 
the  Plum  point  reach  of  the  Mississippi  River  between  Cairo 
and  Memphis,  where  we  had  the  use  of  a small  tow-boat,  and 


401 


had  eiirreiiis  in  water  of  five  inihis  per  lioui-,  to  six  miles 
per  hour,  and  at  Fort  Pillow  eddy,  whieh  we  used  to  imn,  w(; 
sonietinies  strnek  currents  of  twelve  miles  })er  hour. 

“Boats  tried  to  avail  tlieniselves  coming  uf)  stream  of  the 
Fort  Pillow  eddy,  and  we  did  so,  hut  it  was  regarded  as  a 
dangerous  point,  on  account  of  tlie  counter  currents,  and  was 
avoided  by  most  boats. 

“I  do  not  think  I have  ever  seen  an  eight  mile  current  in 
the  Mississippi  Eiver  proper  below  St.  Louis,  but  in  the  Mis- 
souri River  it  was,  except  in  connection  with  the  Fort  Pillow 
location.  I have  also  examined  some  of  the  tributaries  of  the 
Missouri  River,  the  minor  tributaries,  among  which  was  the 
Gasconade  River,  which  had  12  to  18  inches  of  water,  and 
upon  which  we  spent  money  in  improvements.  By  ‘we’  I 
mean  the  Engineering  Corps  of  the  United  States. 

“As  to  what  sort  of  craft  navigated  the  Gasconade — there 
was  a small  steamboat  that  ran  up  to  Vienna,  that  drew  ten 
to  twelve  inches  of  water,  and  ran  up  on  18  inches;  a boat 
about  14  feet  wide,  and  perhaps  100  feet  long,  if  I remember 
it,  with  a stern  wheel.  It  would  carry  50  to  60  tons. 

“The  ten  to  twelve  inches  of  water  spoken  of  is  low  water 
and  is  a limit,  and  not  an  habitual  stage  of  water.  It  could 
actually  run  on  12  inches,  and  was  actually  employed  on  12 
inches  in  moving  out  rafts  and  ties  on  flat  boats,  and  on  rafts 
bound  together  in  the  river.  This  Gasconade  River  comes 
into  the  Missouri  River  at  Herman,  a few  miles  below  Jeffer- 
son City,  and  its  tril)utary  from  the  south.  In  its  width  it 
varies  greatly,  150  feet  v»dde  as  I judged  it  at  the  mouth.  T did 
not  go  up  the  river  itself. 

“I  have  been  u])  the  whole  length  of  the  Ohio  River,  and 
up  that  river  in  the  fall  of  1885  for  the  })urpose  of  letting 
contracts  for  $500,000  worth  of  watei*  craft,  which  f had  de- 
signed written  s})ecifications  for,  and  sto])i)ed  at  all  the  })oints 
along  the  Ohio  River  where  there  were  boat  yards. 

“The  Ohio  River  at  Ihat  time  was  not  at  an  extreme  low 
stage,  but  I remember  of  going  fi*oni  Cincinnati  to  Gallipolis, 
Ohio,  on  the  boat  with  a large  complement  of  i)assengers,  and 
one  or  two  hundred  tons  of  freight,  when  there  was  less  than 
80  inches  of  water  on  the  bars. 

‘The  Ohio  River  does  get  extremely  low.  I have  made  a 
particular  examination  of  it  at  Louisville  for  water  power 
purposes,  where  the  flow  of  water  was  not  over  seven  to  eight 
thousand  cubic  feet  of  water  ])er  second. 

“I  do  not  know  that,  I could  not  state  that  breadth  at  low 
water  at  that  ])articular  ])oint,  exce])t  as  1 remember  it  from 
the  maps.  It  is  very  much  si)read  out  in  approaching  the 
falls  of  the  Ohio  and  the  rapids.  These  are  located  just  above 
Louisville,  just  o])])osite  and  below  Jeffersonville,  Indiana, 
and  New  Albany,  [ndiana,  on  the  o})j)osite  side. 


402 


‘‘l>ol()\v  Pitts])iir^’  tlie  river  lias  rea('lie(l  as  low  a stage  as 
1,000  feet  of  water  pei*  sec'Oiid,  and  at  times  only  a few  inches 
of  water,  eigh't  to  ten  inches  of  water  on  the  rip|)les,  in  depth; 
and  the  Pittsl)nrg  coal  fieet  has  been  locked  up  for  as  much  as 
Hve  months  waiting  for  a boating  rise,  as  they  call  it,  in  order 
to  pass  down  the  Ohio  Iviver,  and  over  a million  tons  of  coal 
has  laid  in  the  Pittsburg  liarhor  waiting  an  opportunity  to 
pass  out  when  the  water  should  l)e  in  tlie  stream  sufficient  to 
float  the  coal  fleet. 

‘Mn  the  census  of  1890,  wlien  I had  occasion  to  make  some 
comparisons  of  that  kind  in  regard  to  the  traffic  on  western 
rivers,  the  commerce  of  the  Ohio  lliver  and  its  tributaries 
amounted  to  five  ])er  cent  in  ton  miles  of  that  carried  by  all 
the  railroads  in  the  United  States. 

“The  smaller  craft  that  I encountered  on  the  Ohio  Eiver 
were  much  like  these  smaller  craft  of  the  Missouri  Kiver, 
28  to  32  feet  wide,  125  to  160  feet  in  length,  running  light  on 
about  a foot  of  water  and  loading  up  to  two  and  a half  feet. 

“When  the  exlreme  low  water  periods  arrive,  the  big  boats 
in  many  cases  go  out  of  commission,  the  larger  boats  used  on 
the  tributaries  go  into  the  main  river,  and  the  little  boats  on 
the  smaller  tributaries  come  into  the  Ohio  and  into  Ihe  Mis- 
souri and  into  the  Arkansas. 

“MHieii  the  low  water  arrives  the  little  boats  come  out  of 
the  small  streams  and  carry  on  the  business  on  the  big  streams. 
There  are  many  of  these  smaller  streams  that  only  have  navi- 
gation in  them  for  a few  months,  three  or  four  months,  like 
the  head  waters  of  the  Tennessee,  where  there  are  five  tribu- 
taries that  have  in  low  water  only  a few  inches  in  depth  on 
the  bars,  and  yet  for  four  or  five  months  or  three  months  have 
a good  stage  of  water.  The  Grovernment  has  spent  consid- 
erable money  in  improving  these  little  streams,  so  as  to  pro- 
duce fifteen  to  eighteen  inches  of  water  continuously  over  the 
ripples  in  the  interest  of  tow-boating  and  flat-boating  by  the 
people,  the  riparian  owners. 

“The  capacity  in  a state  of  nature,  of  a small  stream  which 
they  improved  to  a continuous  depth  of  fifteen  inches,  would 
be  not  over  five  or  six  inches  upon  the  bars  upon  several  of 
those  minor  streams,  like  ITiawasse,  the  Little  Tennessee,  the 
Holstern,  the  Clinch  and  French  Broad,  and  all  streams  of 
that  class  in  East  Tennessee.  They  are  used  for  carrying- 
on  a profitable  commerce. 

“St.  Charles  is  located  upon  the  Missouri  Eiver  about 
twenty-five  miles  from  its  mouth,  and  about  twenty-five  miles 
by  rail  from  the  City  of  St.  Louis.  The  wmrk  there  was  of  a 
similar  character  to  that  performed  at  Nebraska  City — the 
Avork  of  holding  the  river  bank  and  training  the  river  channel, 
and  in  the  intervals  making  measurements  of  the  flow  and  of 


40:} 


tho  iiiovoinent  ol*  ilie  bottom  of  tlio  s4r*oum  and  ot*  keeping  the 
records. 

“When  operating  on  tlie  river  or  making  a journey  on  the 
river,  I liabitiially  took  the  pilot  liouse.  \ liave  ridden,  1 was 
about  to  say,  thousands  of  miles  on  the  pilot  liouse  on  the 
Missouri  and  Mississippi  Rivers  and  upon  the  Ohio  Jtiver. 

left  the  Government’s  service  in  the  fall  of  3884.  I re- 
turned to  Chicago  for  the  purpose  of  engaging  in  sanitary 
engineering  and  for  a time  edited  the  ^American  Engineer,’ 
and  occupied  the  chair  of  mathematics  at  the  Northwestern 
University.  In  1885  I found  myself,  along  with  Dr.  Frank 
Riley,  Assistant  Secretary  of  the  State  Board  of  Health,  and 
Mr.  Ossian  Guthrie,  a citizen  of  Chicago,  who  came  here  in 
1847,  and  had  lived  adjacent  to  the  Mud  Lake  region  and  the 
Des  Plaines  Valley  all  his  life,  upon  a sub-committee  of  the 
Citizens’  Association  of  Chicago,  charged  with  the  duty  of 
preparing  a solution  of  the  drainage  question  for  the  City  of 
Chicago. 

‘Hn  August,  1885,  occurred  a phenomenal  rain  of  six  inches 
in  24  hours,  the  greatest  in  the  history — the  greatest  on  rec- 
ord in  the  history  of  Chicago ; which  sent  all  the  contents  of 
our  rivers  and  slips  into  the  lake  and  greatly  concerned  the 
people  and  brought  to  a head  the  solution  of  the  sanitary 
question.  We  made  a report  to  the  Citizens  Association,  which 
was  adopted.  We  examined  the  Chicago  River,  and  all  the 
flood  territory,  and  the  Des  Plaines  River  and  the  regions  of 
overflow  by  which  the  waters  came  to  the  Chicago  River;  in 
fact  covered  that  stream  from  Lake  (Aunty  to  Joliet  at  that 
time.  This  was  in  1885. 

‘Hn  1886  and  1887  I was  principal  assistant  of  the  Drain- 
age and  Water  Supply  Clommission,  which  is  charged  with  the 
duty  of  making  the  official  investigation,  for  the  City  of  Chi- 
cago, and  in  1888  1 was  connected  with  the  State  TAard  of 
Health  as  consulting  engineer  with  the  same  duty.  In  1888 
I was  consulting  engineer  of  the  joint  committee  of  the  Legis- 
lature and  the  Mayor  of  Chicago,  which  was  appointed  to  draft 
a law,  the  Sanitary  District  Law,  and  had  charge  of  that  legis- 
lation at  Springfield  during  the  session  of  1889. 

‘‘That  is  the  year  that  tliis  act  creating  the  Sanitary  Dis- 
trict of  Chicago  was  adopted,  and  later,  after  the  passage  of 
the  law,  was  engineer  for  the  petitions,  for  the  Sanitary  Dis- 
trict, and  also  for  the  Commission  that  determined  the  boun- 
daries of  the  District,  and  was  then  the  first  chief  engineer 
of  the  Sanitary  District  during  the  year  1890,  and  from  1891 
to  1895  1 was  a trustee  of  the  Sanitary  District,  chairman  of 
the  engineering  committee;  and  in  the  year  1897  1 was  con- 
sulting engineer  of  the  Sanitary  District,  and  in  the  interval 
was  again  consnlting  engineer  of  the  State  Board  of  Health 


4(4 


upon  geiioi-al  sanitary  (luestions.  And  I was  further  con- 
neeted  with  tlie  district  as  a nieniber  of  the  committee  upon 
a compreliensive  i)lan  for  the  completion  of  the  works  of  the 
Sanitary  District  in  1904. 

“We  liad  an  Intercepting  Sewer  Commission  here  in  this 
city  in  1897.  That  was  under  Mayor  Swift,  and  I was  a mem- 
l)er  of  the  Intercepting  Sewer  Commission  which  planned  the 
system  of  intercepting  sewers  which  is  now  nearing  com- 
pletion by  the  City  of  Chicago. 

“In  1895  I was  appointed  upon  the  first  international  deep 
waterway  commission  by  President  Cleveland,  which  was  a 
joint  commission  of  the  United  States  and  Canada,  and  was 
the  engineering  member  of  the  American  Section  and  pre- 
pared the  report  which  was  submitted  to  Congress  in  1897 
by  President  Cleveland  in  a special  message.  Then  Congress 
followed  the  matter  up  by  appropriating  $600,000  for  the  pur- 
pose of  ascertaining  the  cost  of  thirty  feet  of  water  from  the 
Atlantic  Ocean  into  the  Great  Lakes,  Chicago  and  Duluth,  as 
projected  by  the  first  international  commission,  and  I made 
the  economic  investigation  for  the  hoard  of  engineers  that  had 
that  investigation  in  charge  in  reference  to  the  effect  upon 
the  freight  movement  in  this  country  and  in  British  North 
America,  of  making  the  lakes  an  arm  of  the  sea;  and  made 
also  a very  full  study  of  the  freight  producing  resources  of 
the  two  countries  and  of  the  rate  question  as  between  water 
and  rail. 

“In  the  fall  of  1897,  in  company  with  a number  of  contract- 
tors,  I visited  the  routes  for  an  isthmian  canal  at  Panama 
and  Nicaraugua  and  spent  nearly  a year  in  preparing  plans 
and  estimates  for  a contracting  syndicate  which  contemplated 
undertaking  the  work  by  one  of  those  routes. 

“In  1898  I was  the  advising  engineer  of  Governor  Black’s 
Committee,  on  the  investigation  of  the  Erie  Canal  improve- 
ments under  what  was  known  as  the  Nine  Million  Act,  and 
went  over  the  entire  route  of  the  several  canals  of  New  York, 
some  five  hundred  miles  in  length,  and  saw  the  work  in  all 
stages  of  development,  as  it  was  being  rebuilt  and  rejuve- 
nated. 

“In  1899  I was  consulting — entered  the  service  as  consult- 
ing engineer  of  the  Union  Water  Company  of  D/enver,  Colo- 
rado, in  which  position  I continued  for  four  years  during  the 
building  of  what  is  known  as  the  Cheesemound  Dam  upon  the 
south  fork  of  the  South  Platt  River  near  the  outlet  of  South 
Park.  This  dam  is  225  feet  high,  granite  masonry,  and  within 
a year  after  its  completion  had  210  feet  of  water  against 
it,  and  controlled  all  the  water  running  off  of  1,800  square 
miles.  It  is  the  highest  dam  in  the  world. 

“In  1901  I was  employed  to  develop  the  water-power  ]u*op- 


405 


ositiou  at  ilio  Dos  IVIoinos  Ivapids  ol'  the  Mississippi  Itivor 
above  Ivookiik,  Iowa,  niul  Jlamilton,  Illinois,  and  was  con- 
neetod  with  that  proposition  for  four  years. 

‘‘We  projeoted  a dam  55  feet  hig'h.  and  7,000  feet  long  at 
tlie  foot  of  the  rapids,  wliidi  was  to  drown  out  the  entire  rap- 
ids, some  12  miles  in  length,  and  set  the  water  back  to  J>urling- 
ton,  Iowa,  a distance  of  forty  miles,  and  do  away  with  the 
ship  canal  alongside  the  rapids,  which  had  cost  the  Grovern- 
ment  since  the  Civil  War,  four  and  a half  million  dollars. 

“The  Government  had  built  a canal  to  go  around  those  rap- 
ids and  connect  the  navigation  on  the  Des  Moines  above  the 
rapids  with  that  below.  At  extreme  low  water  the  rapids 
were  difficult. 

“Before  that  dam  was  put  in,  as  I remember  the  profiles 
while  I was  working  at  this  project,  I think  the  low  water 
got  down  to  a foot  and  a half  in  the  channels,  but  they  were 
very  crooked  between  the  chains  of  rock,  and  very  difficult 
to  navigate  at  extreme  low  water. 

“I  have  also  prepared  water  power  projects  or  reports,  or 
made  examinations  in  nine  States.  I have  studied  and  made 
flood  reports  upon  Green  River,  Michigan,  and  the  Genesee 
River  in  New  York  and  upon  other  streams. 

“I  have  performed  service  as  an  all-around  engineer  in 
nearly  every  branch  of  the  profession,  but  more  than  half 
my  time  has  been  given  to  the  domain  of  hydraulic  engineer- 
ing and  particularly  to  the  subject  of  waterways. 

“The  International  Improvement  Commission  of  Illinois 
was  authorized  by  Act  of  the  Legislature  in  1905,  and  was 
organized  in  1906  for  the  purpose  of  developing  primarily 
some  proposition  in  regard  to  the  Lakes-to-the-Gulf  water- 
way, to  be  submitted  to  the  Legislature  of  Illinois,  and  gen- 
erally to  examine  the  streams  of  this  State  and  ascertain 
what  it  was  feasible  to  do  in  the  way  of  establishing  a water- 
way policy  foi*  the  state.  I was  secretary  of  this  commis- 
sion when  it  was  organized,  and  prepared  the  report  which 
was  submitted  to  the  Legislature  in  April,  1907,  which  is  the 
basis  of  the  action  taken  by  the  Legislature  in  authorizing 
the  constitutional  amendment  to  be  submitted  to  the  people 
this  fall,  and  also  a bill  upon  which  this  suit  has  been  brought. 
I am  now  the  consulting  engineer  of  this  commission,  the  Leg- 
islature have  continued  the  same  and  given  it  a much  larger 
appropriation. 

“The  pam])hlet  which- is  shown  me,  and  which  the  reporter 
marked  for  identification,  ‘Cooley  Exhibit  E (iVppendix  II, 
p.  3889;  Trans.,  p.  5795;  Abst.,  p.  1725)  is  the  official  print 
of  the  report  to  which  I have  referred. 

“I  am  ac(]uainted  with  the  physical  conditions  of  the  Des 
Plaines  River.  \ have  made  personal  examinations  from 


Wadsworth  in  Lake  ( bounty  to  tlie  inoutli,  established  gauges 
thereon  for  the  })ur|)ose  of  keeping  a record  of  the  stages  of 
water,  measured  the  stream  at  a number  of  points;  have  made 
sui-veys  and  (Hrected  other  surveys;  in  fact,  I think  most  of 
the  surveys  that  have  been  made  in  regard  to  the  stream  by 
tlie  Sanitary  District  and  tlie  City  of  Chicago. 

‘‘In  1885  wlien  I first  began  to  give  it  systematic  considera- 
tion, and  in  connection  with  the  Citizens’  Committee,  and  later 
as  ])rinci])al  assistant  of  the  l>rainage  and  Water  Supply  Com- 
mission, I had  cliai'ge  of  tlie  surveys  through  the  Des  Plaines 
Valley,  and  of  the  records  and  flow  measurements  upon  the 
Des  Idaines  and  other  streams  aliout  Chicago. 

“This  report  of  the  internal  improvement  commission  of 
Illinois,  and  which  is  prefaced  by  a letter  of  transmittal  dated 
Chicago,  February  2,  1907,  in  reference  to  that  date  was  of- 
ficially published  by  the  state.  It  was  transmitted  to  the  leg- 
islature as  a printed  document  on  April  10th,  by  special  mes- 
sage of  the  Governor,  in  1907. 

“As  to  my  own  personal  inspection  and  examination  and 
travel  upon  the  Des  Plaines  Piver — I have  spoken  of  my  con- 
nection with  the  work,  1885  to  1887,  and  I passed  over  dur- 
ing that  period  a part  of  the  upper  river,  and  all  of  the  lower 
river  from  Riverside  to  the  mouth  in  a boat. 

“I  was  on  portions  of  the  Des  Plaines  River  in  1885;  in 
1887  I passed  over  that  portion  between  Joliet  and  the  mouth 
in  a boat,  and  as  late  as  1892  made  a trip  on  the  river  down 
the  rapids  from  Romeo  to  Joliet,  or  Lockport,  and  to  the  upper 
basin  at  Joliet. 

“I  had  much  to  do  with  the  river  diversion,  and  determining 
the  character  to  be  given  to  that,  which  was  based  upon  the 
data  and  studies  which  had  been  made  under  my  direction. 

“Q.  You  may  tell  us  now,  or  tell  the  court,  whether  or  not 
the  Des  Plaines  River  from  the  point  known  as  Dam  No.  1 in 
Joliet  to  its  mouth  is  or  is  not  a navigable  stream.  * * * 

for  useful  purposes  of  commerce  at  the  times  and  places  where 
you  saw  it? 

“Witness.  The  Des  Plaines  River  is  a navigable  stream 
between  Dam  No.  1,  Joliet,  and  the  mouth. 

“Counsel  for  Complainant.  Q.  Was  that  so  when  you 
were  there  and  visited  it  and  inspected  it? 

“A.  It  was. 

“The  ‘Upper  Des  Plaines  River’  refers  to  that  portion  of 
the  stream  north  of  Riverside,  or  really  north  of  the  township 
line  between  Townships  38  and  39,  which  is  the  prolongation  of 
39th  street  in  the  City  of  Chicago,  and  the  ‘Lower  Des  Plaines’ 
refers  to  the  meandered  portion  of  the  stream  from  that  point 
to  the  mouth. 

“In  the  personal  examinations  that  I made  of  the  river  I 


407 


took  iHoasiiros  to  inoasiii-e  its  flow  and  as('(‘rtain  its  (I(^j)tli.  I 
rei)oato(0y  i)assod  over  what  is  known  as  tin;  twolv(i  niilo  1(3V(‘I 
that  was  oxtondiiig  from  the  range  line  at  Sunnnit  to  tin;  old 
portage  sloiigli  on  Range  \2  or  Id  east,  a})ove  Sinnmit  down 
to  witliin  a sliort  distance  of  Ijemont,  whieh  was  a sneeession 
of  deep  ])Ools  and  wide  waters,  (‘ontaining  several  feet  of  water 
with  two  points  of  more  limited  de])th.  t also  went  over  the 
portion  of  the  river  in  1892  from  the  end  of  the  twelve  mile 
level  down  to  Lockport  and  Joliet. 

‘‘I  measured  the  stream  at  Riverside  at  various  times  in 
1886,  and  also  in  the  flood  of  1887.  I established  a gauge  at 
Riverside  in  May,  1886.  This  gauge  was  about  a half  a mile 
above  the  township  line,  by  the  course  of  the  river,  in  the 
southeast  quarter  Section  36,  Town.  39,  Range  12  east. 

was  upon  the  river  in  the  months  of  August  and  Sep- 
tember, 1885,  and  every  month  during  1886  and  a large  part 
of  1887. 

‘AVe  had  depths  in  the  twelve  mile  level,  and  there  was  a 
record  made  of  those  depths.  The  record  was  kept  on  the 
Riverside  gauge,  and  printed  in  the  report  of  the  board  of 
engineers  for  1905.  The  twelve  mile  level  l)egan  at  the  range 
line  between  12  and  13  east,  north  of  Summit,  at  the  old  Port- 
age Slough,  at  the  Ogden  dam  itself,  and  continued  down  to 
within  a short  distance  of  Lemont,  and  was  a continuous  level 
of  water,  very  deep  in  localities,  up  to  ten  or  twelve  feet,  and 

generally  there  was  continuously  a considerable  depth. 

* * * * # * 

‘^The  shallowest  water  observed  was  recorded  on  the  maps, 
showing  the  lower  water  for  the  twelve  mile  level  and  on  the 
profile;  if  I remember  it  was  al)out  eighteen  indies  at  extreme 
low  water.  In  1887  1 was  over  ])ortions  of  the  Des  Plaines 
River  this  side  of  Joliet,  and  made  a particular  trip  over  the 
river  from  Joliet  to  the  mouth  and  further  down  the  stream.” 
(Abst.,  pp.  794-807.) 

defendant’s  lULOTS  AS  EX  CERTS  ON  NAVIGABILITY. 

Elmore  W.  Bewley,  captain  and  jiilot,  58  years  old.  Residence, 
Bowling  Green,  Kentucky.  (Abst.,  p.  1015,  et  seq.) 

Field — Ohio,  Green,  Barren,  Rough,  Nolin  and  Cumberland 

‘‘Navigated  stern  wheel  boats  principally;  on  Green  River 
36  years;  on  Ohio  four  years.  The  others  a few  months  each. 
Saw  the  Des  Plaines  River,  April  28th,  and  think  it  was  not 
navigable.  (Abst.,  p.  1015.) 

“Went  down  to  the  mouth  of  the  river  from  Joliet  in  an 
automobile  and  returned.  Left  Joliet  1 o’clock.  Arrived  back 
half  jiast  6.  Traveled  18  miles  (and  returned,  36).  With  me 
were  Mr.  Woerman  and  Captain  McBride  of  Louisville.  We 


slciyed  at  the  iiioiitli  .‘>0  minutes.  'Some  places  tlie  road  was 
halt*  a mile  from  the  river.  We  could  see  the  river  plainly. 
(Ahst.,  p 1021.) 

‘^W^e  (‘rossed  the  ihver  six  or  seven  times  on  different 
bridges.”  (Ahst.,  p.  1015.) 

lie  was  also  asked  the  hypothetical  ([uestion  of  the  defense,  and 
answered  that  the  stream,  so  described,  could  not  be  navigated. 

On  cross-examination  it  ai)peared  that  the  l)ulk  of  Mr.  Bewley’s 
Ohio  River  navigation  was  in  a strip  nine  miles  long,  not  involving 
the  rapids  of  the  Ohio;  that  the  Green  River  on  which  the  bulk  of 
his  work  was  done  was  locked  and  dammed  with  six  locks  and  dams 
in  122  miles,  and  that  he  had  never  navigated  the  river  before  the 
locks  and  dams  were  put  in;  that  the  Barren  River  he  had  navi- 
gated for  30  miles,  using  one  lock  and  dam;  that  the  Nolin  River  is 
navigated  for  14  miles  by  the  aid  of  water  from  the  dam  and  lock 
across  the  Green  River  just  below  the  Nolin ’s  mouth;  that  the 
Rough  River  is  a tributary  of  the  Green,  with  a lock  and  dam 
in  it  eight  miles  above  its  mouth  and  that,  before  the  lock  and  dam 
was  put  in,  it  was  not  navigable  ‘‘except  in  a high  stage  of  water 
two  to  three  months  in  the  year.”  (Abst.,  p.  1019.) 

‘ ‘ That  the  Barren  River  navigation  was  interfered  with  by 
the  narrowings  of  the  stream. 

“These  streams  were  from  75  to  90  and  100  to  250  feet  in 
width.  (Abst.,  pp.  1018-19.) 

“The  Barren  was  further  interfered  with  by  overhanging 
timber. 

“That  he  made  only  one  trip  on  the  Cumberland  and  that 
was  before  the  government  improvement  was  made,  but  while 
the  work  was  going  on  and  the  water  got  down  to  24  inches ; 
that  he  used  lighters  to  go  over  the  shoals,  taking  the  boat 
empty.  The  two  feet  was  iii  the  minimum  of  the  Ohio.” 
(Abst.,  p.  1020.) 

He  finally  said:  “My  navigation  has  been  mostly  on  slack 
water.  That  is  easy  navigation.”  (Abst.,  p.  1022.) 

Nathan  P.  Pryor,  47  years  old;  steamboat  pilot  and  master. 
Held  pilot  commission  13  years ; master  11  years.  Steamboated 
28  years.  (Abst.,  p.  1022  et  seq.) 

Field — The  Kentucky,  the  lower  Ohio. 

“About  one  year’s  experience  with  gasoline  boats,  flat- 
bottomed  scow-bowed  stern  wheel  boats,  70  feet  by  18,  freight 
carriers. 


40!) 


“1  saw  the  Des  IMaiiies  April  17ili,  and,  in  rriy  ()[)iriiori,  it 
was  not  navig’ahle.  It  was  ohstriaded  by  brhdge  [)iers,  islands, 
and  (iniber,  and  there  were  rapids.  It  was  a high  stage  of 
water,  and  I could  not  tell  wliat  the  obstructions  were.  I 
should  judge  there  was  rock  in  the  middle  of  the  river.  It 
was  too  swift  to  navigate  a boat,  if  you  were  going  down 
stream  and  had  to  make  a stop  anywliere.”  (Abst.,  j).  1023.) 

He  answered  the  defendant’s  hypothetical  (piestion  in  the  nega- 
tive. 

It  developed  that  his  navigation  of  the  river  was  through  11 
locks  and  dams  in  210  miles. 

‘‘Prior  to  the  time  the  general  government  fixed  it  the  river 
was  navigable  for  a small  boat  towing  a barge  perhaps  six 
months  in  a year. 

“It  had  not  over  18  inches  of  water  on  the  shoals. 

“I  never  saw  nor  heard  of  a boat  operated  on  16  or  18  inches 
of  water,  loaded  or  unloaded.  (Abst.,  p.  1026.) 

“There  are  times  when  the  water  is  high  in  the  Kentucky 
and  we  run  right  over  the  top  of  the  dams. 

“If  a boat  draws  four  feet  of  water  and  there  is  five  feet 
of  water  on  top  of  the  dam  and  it  is  practically  level,  we  go 
over  it.  We  come  down  stream  over  that  very  often,  but  we 
cannot  go  up,  because  the  current  is  too  swift.  (iVbst.,  p.  1026.) 

“It  is  not  any  risk  to  go  over  a drop  of  a foot  in  400.  I 
have  gone  over  with  a fall  of  two  feet  in  400.  Would  not 
deny  it. 

“Mr.  Woerman  took  me  from  Joliet  down  the  river  in  an 
automobile  down  to  the  dam  and  back.  We  crossed  about 
eight  bridges.  (Abst.,  p.  1027.) 

“The  depth  of  the  river  I know  from  what  they  told  me 
and  my  own  judgment.  I had  never  seen  it  and  of  course  I 
had  to  take  the  other  man’s  word  for  it.  I cannot  say  posi- 
tively how  rapid  the  currents  are.  1 was  told  the  fall  per 
mile,  but  not  the  current.  1 do  not  know  that  I could  in  a 
scientific  way  compute  the  current  from  the  fall  of  the  river. 
I talked  pretty  freely  with  Mr.  Woerman  all  the  way  down  and 
back.”  (Abst.,  p.  1028.) 

W.  H.  Whisler,  licensed  steamboat  man  since  1870.  Before  that, 
floated  logs  and  lumber.  (Abst.,  p.  1154  et  seq.) 

Field — The  Upper  Mississippi ; used  boats  towing  rapids  this 
last  year  and  pleasure  steamer. 

“Have  seen  the  Des  Plaines  twice,  once  six  weeks  ago  Sun- 
day and  then  again  this  morning.  Went  in  an  automobile  and 
stopped  at  different  places.  I do  not  think  it  is  navigable,  it 
is  too  narrow,  too  swift.  1 don’t  think  you  could  take  any  kind 


410 


()1  a })()at  safe.  1 don’t  think  it  is  ])Ossi))le  to  (‘arry  on  a profit- 
able eonnneree  on  any  kind  of  a })oat  on  that  river. 

“The  l)es  idaines  is  very  swift,  swifter  than  any  water  we 
have  on  the  Jvoek  Island  Ka])ids.  It  looks  to  me  there  are  a 
great  many  }>onlders  or  ro(‘ks  on  the  bottom.  I don’t  know 
what  they  are;  I think  they  are  boulders,  because  wherever  the 
big  falls  are  there  is  a break  in  tlie  water.  (Abst.,  p|).  1154-55.) 

“I  never  heard  of  navigating  on  the  Snake  River,  over 
ra})ids  with  a fall  of  10  feet  to  the  mile.  I think  the  Des 
Plaines  is  too  narrow,  ft  is  ])ossible  to  navigate  a crooked 
i-iver  80  feet  wide,  l)y  boats  70  to  100  feet  long  if  the  water  is 
feet  deep.  You  could  not  handle  it  unless  you  would  drop 
out  a line.  We  don’t  handle  that  draught  of  boats.  (Abst., 
j)}).  1155-50.) 

“The  Mississippi  where  T navigated  it  is  one-half  a mile 
wide;  iiarrowest  place  200  feet.  (Abst.,  p.  1150.) 

John  McCaffrey,  05  years  old.  Steamboating  since  1805.  (Abst., 
p.  1157  et  seq.) 

Field — The  Mississippi,  Chippewa  and  Hennepin  Canal,  the  Illi- 
nois, the  Ohio,  the  Tennessee  and  the  Cumberland. 

“Have  been  around  the  Mussel  Shoals  on  the  canal.  Not 
over  them  in  a boat.  (Abst.,  p.  1157.) 

“Was  warped  and  cordelled  up  the  Chippewa.  It  was  the 
only  way  we  could  go  up  because  of  the  rapids.  I saw  the 
Des  Plaines  River  April  26th  and  again  yesterday.  It  did  not 
look  much  like  a river  to  me^ — like  a creek,  or  slough.  It  was 
swift  and  crooked,  and  seemed  a very  rough  bottom.  You 
could  not  get  anything  up  that  ivay.  I should  say  it  was  not 
navigable.  I don’t  think  you  could  get  anything  up  there  that 
would  do  any  business.  The  river  is  too  swift  and  too 
crooked,  and  there  is  not  enough  water  in  it  to  be  navigable. 
If  there  is  not  enough  water  over  the  obstructions,  they  are  the 
worst  kind.’  ” (Abst.,  p.  1158.) 

“It  could  not  be  cordelled  up,  it  is  too  crooked  and  there  is 
not  width  enough,  with  a steamboat.  I don’t  know  what  the 
slope  is.  I didn’t  take  soundings.  (Abst.,  p.  1159.) 

“The  shallowest  water  we  have  ever  run  on  in  the  Tennessee 
River  was  44  feet,  in  the  Mississippi  River  a minimum  depth  of 
three  feet.  I have  never  navigated  on  two  feet.  I warped  a 
boat  up  the  Ouachita  once.  It  was  pretty  swift  and  crooked ; 
300  feet  wide  at  the  bend.  4Ve  have  about  18  inches  to  the  mile 
on  the  rapids  (the  Rock  Island  Rapids).  The  slope  of  the 
Des  Plaines  looked  double  of  that.  I never  knew  of  navigat- 
ing rivers  with  a slope  of  six  feet  to  the  mile,  or  anything  more 
than  that.  I don’t  think  they  could  navigate  16  feet  to  the 
mile.”  (Abst.,  p.  1160.) 


-Ill 


,1.  W.  Ivanibo,  (14  years  old.  Pilot,  (jot  first  })a))ers  in  ’d4. 
( Abst.,  p.  1 1(10  et  se(i.) 

Field — Fiitirely  on  the  Mississippi. 

“1  saw  the  Des  Plaines  April  2(lth  and  again  yesterday. 
AVe  found  there  were  rough  looking  pieces  of  water.  It  must 
be  a rough,  rugged  and  snarly  bottom  on  account  of  the  con- 
stant swirls  and  things  on  top  of  the  water.  (If  course,  we  did 
not  see  any  in  most  of  the  water.  I should  say  no  sane  man 
would  ever  try  to  take  anything  up  or  down  the  Des  Plaines 
Kiver  in  the  shape  of  a steamboat.  I would  not  go  down  in  a 
skitf.  (Abst.,  p.  1161.) 

have  seen  the  Mississippi  Elver  when  there  was  not  20 
inches  in  the  channel.  You  cannot  cordelle  the  Des  Plaines 
on  account  of  the  bad  shore.  Too  many  obstructions.  You 
can  cordelle  wherever  you  have  a shore  to  walk  on.  I have 
had  to  warp  boats  on  the  Bock  Island  Kapids  a hundred  times. 
(Abst.,  p.  1162.) 

don’t  know  of  a boat  in  our  country  that  could  go  up  that 
river,  and  I have  seen  them  all.  The  greatest  fall  in  the  Bock 
Island  Bapids  is  34  feet  to  the  mile.  I don’t  know  of  any 
navigation  on  any  river  that  has  a fall  of  six  feet  to  the  mile. 
I don’t  think  it  possible  to  navigate  anything  on  16  feet  to  the 
mile.  The  smallest  boat  1 speak  of  was  70  feet  long,  with  a 
17  feet  beam,  and  carried  40  to  50  tons.  I do  not  know  of  any 
boat  carrying  10  tons.  I think  a boat  30  feet  long  and  15  feet 
wide  with  a flat  bottom  could  carry  10  tons.  I never  have  had 
any  experience  with  that  kind  of  navigation.  (Abst.,  p.  1163.) 

don’t  think  it  could  go  up  the  Des  Plaines.”  (Abst.. 
p.  1164.) 

Joseph  E.  McCullough,  St.  Louis,  Missouri.  Age  62.  Pilot  40 
years.  Master  27. 

Field — Mississippi,  Cumberland  and  Ohio. 

Falls  of  the  Ohio  and  Harbor  Shoals  on  the  Cumberland 
are  the  most  rapid  waters  1 ever  navigated.  Never  navigated 
more  difficult  or  raj)id  water  on  any  river  than  tlie  Cumber- 
land. Saw  the  Des  Plaines  in  April  and  again  this  morning 
(June  2,  1908),  from  Joliet  down  to  the  mouth.  1 certainly 
think  it  is  not  navigable  and  could  not  be  used  for  useful  ])ur- 
poses  of  commerce.  It  is  hard  bottomed,  rapid,  crooked  and 
very  narrow.  Do  not  think  it  possible  for  any  steamboat  on 
earth  to  ascend  or  descend  it.  (Abst.,  p.  1176.) 

^Ht  is  swifter  than  the  falls  of  the  Dhio  or  Harbor  Shoals 
of  the  Cumberland  or  Bock  Island  Bapids. 

“The  Ohio  Bapids  have  a fall  of  28  feet  in  two  miles.  The 
shoals  of  the  Cumberland  have  a fall  of  eight  feet  in  a little 
over  a mile.  They  had  to  war])  over  it  before  the  Govern- 


412 


ineiit  placed  in  a Icx'k  and  dam.  If  you  had  all  the  water 
needed  to  niakx‘  the  best  navigation,  1 would  say  you  could 
get  up  and  down  a slo])e  over  four  or  five  feet  to  the  mile. 
(How  then  did  they  navigate  the  fulls  of  tlie  Ohio?) 

‘OV  flat  bottomed  boat  bO  feet  long  and  12  feet  wide  could 
carry  10  tons  of  freight  on  six  indies  of  water.  It  could  not 
carry  10  tons  of  freight,  because  it  would  take  six  or  eight 
inches  of  water  to  carry  machinery.  (Abst.,  pp.  1177-78-79.) 

“I  said  at  first  and  I will  stick  to  my  text,  I don’t  think  you 
could  bring  a canoe  up  the  Des  Plaines  lliver.  My  record  as  a 
navigator  and  pilot,  if  I do  say  it  myself,  I can  prove  it,  there 
are  few  equals  and  none  my  superiors.  (Abst.,  p.  1179.) 

‘^The  highest  current  that  is  navigable  in  shoal  water  would 
not  be  over  four  and  a half  to  five  miles  current.”  (Abst., 

p.  1182.) 

Thomas  F.  Boyle,  St.  Louis,  Missouri.  Sixty  years  old.  Li- 
censed pilot  in  1871;  master’s  license  over  25  years.  (Abst.,  p. 
1179  et  seq.) 

Field — The  St.  Louis,  the  Ohio,  the  Ouachita  and  its  tributaries 
and  the  Arkansas  River  to  Little  Rock. 

I piloted  on  the  Arkansas  in  the  cotton  seasons  before  they 
built  the  railroad.  In  the  summer  there  wasn’t  enough  water 
to  run  a boat.  The  Arkansas  is  the  toughest  river  on  earth. 
The  lightest  boat  on  that  river  does  not  draw  over  18  inches. 
The  Harbin  does  not  draw  over  12  inches. 

saw  the  Des  Plaines  in  April  and  again  this  morning 
with  Captain  McCullough.  It  has  a rough  bottom;  it  is 
crooked,  and  no  boat  on  earth  of  any  size  or  account  would 
ever  attempt,  or  no  fellow  would  ever  attempt  to  go  up  it.  It 
is  not  navigable.  It  would  wear  the  bottom  off  the  boat  to 
warp  it  up  Treat’s  Island.  (Abst.,  pp.  1179-80.) 

saw  snags,  logs,  bars  and  rock  bottom  itself  in  the  river. 
I think  you  could  see  the  rocks.  Thev  were  under  the  breaks. 
(Abst.,  p.  1181.) 

don’t  know  whether  a boat  could  be  made  to  run  on  a 
river  that  had  a fall  of  16  feet  to  the  mile. 

^‘The  navigable  part  of  the  Arkansas  was  40  feet  wide. 
There  are  times  when  the  Harbin,  that  draws  only  12  inches, 
cannot  go  up  it. 

‘‘Below  St.  Louis  the  Mississippi  current  is  between  six  and 
seven  miles  an  hour.  (Abst.,  p.  1181.) 

“My  boat  can  go  against  a ten-mile  curernt,  but  I have  no 
idea  how  many  feet  per  mile  of  slope  would  produce  that  cur- 
rent. 

“From  my  vieu'  of  the  Des  Plaines  the  other  day  I do  not 
think  there  U'as  over  three  and  a half  feet  of  mater  at  the 
shoalest  place.”  (Abst.,  p.  1182.) 


Istvac  N.  Mason.  Sovonty-oi^lit  yeai's  old.  IIoiik;,  St.  l.-ouis. 
Steainhoatod  forty-six  years.  Nevei-  held  a pilot’s  lieense.  (Ahst., 
p.  1217  et  seq.) 

Field — Tlie  Monong’aliela,  tlie  Ohio,  tlie  Mississippi  and  the  Mis- 
souri. 

‘O  WR8  clerk  on  the  boats — freight  agent  for  the  Northern 
Line  to  St.  Paul  and  President  of  the  Anchor  Line.  T was 
City  Auditor,  Sheriff  and  City  and  County  Marshall,  State 
Auditor  and  President  of  the  Merchants’  Exchange.  I had  an 
office  on  the  wharf  boat,  but  had  nothing  to  do  with  the  naviga- 
tion. 

took  out  a boat  from  Vicksburg  during  the  war. 

^‘The  Des  Plaines  is  not  navigable.  I saw  it  from  an  auto- 
mobile this  morning. 

‘‘The  falls  of  the  Ohio  have  a slope  of  30  feet  in  two  miles. 
The  boats  passed  up  and  down  there  only  in  high  water ; the 
current  in  high  water  would  average  from  six  to  eight  miles 
per  hour.  The  water  is  so  deep  it  flattened  out  the  slope. 
The  current  at  the  Rock  Island  Rapids  is  10  or  11  miles  an 
hour.  (Abst.,  pp.  1217-18-19-20.) 

“There  is  places  in  the  Des  Plaines  River  where  the  current 
is  more  rapid  than  it  is  on  the  Mississippi  River,  only  for  a 

, short  distance.  I only  judge  from  experience  in  looking  at  the 
Dies  Plaines  this  morning.  It  is  43  years  since  I quit  running 
boats  over  these  rapids  in  the  Mississippi.” 

“There  are  no  locks  and  dams  in  the  Cumberland,  the  Ten- 
nessee or  the  Allegheny.  (Abst.,  ]).  1220.) 

“The  captain  of  the  steamboat  has  the  ]fdot  under  his  direc- 
tion.’’ (Abst.,  p.  1221.) 

We  submit  that  the  opinions  of  these  eight  expert  witnesses  for 
the  defense,  that  the  Des  Plaines  is  not  navigable,  are  worthless. 

It  turns  out  that  Bewley  and  Pryor,  two  Kentucky  i)ilots,  are 
slack  water  ])ilots  and  have  had  no  ex])erience  away  from  slack 
water  except  on  the  smoother  ])ortions  of  the  Ohio. 

Wliisler  and  Rambo  were  raftsmen  from  the  Mississii>pi  who 
grew  up  into  i:>ilots,  and  were  familiar  with  the  immense  stream  of 
the  Mississippi,  and  their  piloting  experience  is  mostly  since  the 
Mississippi  has  been  improved  by  wing  dams,  locks  and  the  blast- 
ing of  channels  through  the  reefs  of  the  Rock  Island  Rapids.  Ram- 
bo, however,  does  remember  warping  up  the  Rock  Island  Rapids  in 
1864,  with  less  than  20  inches  of  water  and  through  a current  which, 
it  appears  from  the  other  testimony,  ranged  from  three  miles  an 


414 


lioin*  to  nine  and  c4even  miles  an  lioiii*  and  through  a channel  which 
it  appears  from  other  testimony  was  narrowed  down  to  200  feet 

a good  deal  of  the  way  and  to feet  in  tlie  narrowest  place; 

and  this  (‘hannel  was  strewn  with  boulders,  some  of  which  were  so 
])ermanent  and  stood  so  high  above  the  water  that  the  pilots  used 
them  as  landmarks. 

The  opinions  of  these  men  were  simply  deliverances  of  the  goods 
they  were  ])aid  to  deliver.  McCaffrey’s  record  was  much  the  same, 
with  the  addition  of  experiences  on  the  Tennessee,  Cumberland  and 
Ouachita,  hut  the  shallowest  stream  he  has  ever  had  anything  to  do 
with  was  four  and  one-half  feet  on  the  Tennessee  and  three  feet  on 
the  ^Mississippi.  He  never  did  run  on  less  than  three  feet.  Natur- 
ally, he  thinks  that  what'he  has  not  done  cannot  he  done. 

And  yet,  the  records  affirmatively  show  that  in  1889  there  were 

steamboats  navigating  the  Mississippi  Eiver  and  its 

tributaries  on  less  than  three  feet  of  water. 

AFcCaffrey  thinks  that  a boat  cannot  navigate  a stream  with  a 
slope  of  six  feet  to  the  mile,  and,  as  to  anything  more  than  that,  it 
is  out  of  the  question. 

Boyle,  with  his  experience  on  the  Arkansas,  thought  a boat  could 
not  go  up  against  a fall  of  ten  feet  to  the  mile,  although  he  was  sure 
that  his  boat  could  go  against  a ten  mile  current. 

The  opinion  of  Mason,  wdio  was  a clerk  and  freight  agent,  city 
marshal,  sheriff  and  state  auditor,  and  who  was  sure  that  there 
were  no  locks  or  dams  on  the  Cumberland,  Tennessee  or  the  Alle- 
gheny, is  not  worth  discussing. 

The  opinion  of  McCullough  (whose  voir  dire  was,  said  at  first 
and  I will  stick  to  my  text;  I don’t  think  yon  could  bring  a canoe 
up  the  Des  Plaines  Eiver.  My  record  as  a navigator  and  pilot,  if 
T do  say  it  myself — I can  prove  it,  there  are  few  equal  and  none  my 
superiors”)  is  that  even  if  the  Government  reports  showed  him 
records  of  streams  such  as  the  Snake,  then  he  would  have  to  be 
shown  the  river  before  he  would  be  lieve  it.  This  is  the  opinion  of 
the  narrow-minded,  well-intentioned,  ignorant,  conceited  man  of 
small  experience,  the  man  who  comes  from  St.  Louis,  Chicago’s 
commercial  rival,  where  opinion  generally  has  been  hostile  to  any 
development  of  navigation  that  would  bring  the  business  of  Chi- 


415 


c'ago,  by  water,  into  (‘oinpeli lion  with  that  ot  St.  Louis.  It  is  an 
outbreak  of  the  petty  old  rivalry  that,  for  luany  years,  kept  St. 
Louis  and  (diieago  at  swords  points;  and  this  man  of  sixty-two, 
I^oyle  of  sixty,  and  Mason  of  seven ty-eigiit  years,  all  from  St. 
]jOuis,  are  simply  so  many  expressions  of  that  s[)irit. 

The  defense  naturally  went  to  that  field  to  find  liostile  attack 
upon  anything  in  tlie  way  of  a navigable  river  in  the  vicinity  of 
Ciiicago.  St.  Louis  might  have  outstripped  Chicago  in  every  other 
respect,  but  these  worthy  ancient  mariners  were  sure  that  there  was 
still  one  respect  in  which  St.  Louis  was  in  the  lead — she  had  a 
navigable  river,  and  Ilinois  and  Chicago  had  not. 

It  was  the  same  spirit  of  commercial  jealousy  which,  in  the  first 
instance,  lead  LaSalle  in  1680  to  establish  his  trading  post  for  the 
foot  of  the  lakes  at  St.  Joseph  and  lead  him  to  attack  bitterly  the 
prior  settlement  inaugurated  under  Marquette  and  Joliet  at  Chi- 
cago. That  old  fight  had  been  fought  out  and  settled.  The  trad- 
ing post  at  the  foot  of  the  lakes  is  at  Chicago  and  not  at  St.  Joseph, 
LaSalle  to  the  contrary,  notwithstanding,  and  the  fight  between  St. 
Louis  and  Chicago  has  been  fought  out  and  forgotten  except  as  re 
vived  by  the  ancient  mariners  whom  the  defense  saw  fit  to  imparl. 

And  yet,  the  Government  reports  and  the  defendant’s  witness. 
Gray,  show  that  in  the  Columbia  and  Snake  there  is  in  the  Five- 
Mile  Rapids  a slope  of  over  ten  feet  to  the  mile;  that  in  Fishhook 
Rapids  there  is  a slope  of  ten  feet  to  the  mile,  with  a reef  and  shoal 
bar  and  only  two  feet  of  water;  that  at  the  Pine  Tree  Rapids  there 
is  a slope  of  twelve  and  fourteen  feet  to  the  mile  that  it  took  two 
days  to  get  through;  that  at  Monumental  Rapids  there  is  a fall  of 
1.7  feet  in  300  feet,  being  at  the  rate  of  29.88  feet,  with  a depth  of 
thirty  inches,  very  difficult  and  dangerous  and  not  effectively  navi- 
gated; that  at  Texas  Rapids  there  is  a fall  of  over  11.56  feet  per 
mile;  that  in  its  native  condition  it  used  to  take  all  day  to  get 
through,  but  now  it  has  heen  made  so  that  they  run  it  in  half  an 
hour;  that  at  the  Grand  Ra])ids  of  tlie  Stikine  there  is  a current  of 
twelve  miles  an  hour  Vvdiere  no  boat  goes  through  without  a line  put 

out  and  they  go  on  a depth  of  three  and  a half  feet,  which 

estimated  to  be  the  shoalest  depth  in  the  Pes  Plaines  River; 

that  at  the  Umatilla  Rapids,  with  a fall  of  seventeen  feet,  they  have 
a current  of  twelve  miles  an  hour,  and  very  crooked  on  a five  feet 


(loj)tli;  tliat  the  S(jiially  Hook  Rapids  fall  ten  feet  in  three-quarters 
of  a mile  'and  have  a velocity  of  from  seven  to  ten  feet;  that  at  the 
Priest  Rapids,  nine  miles  long,  they  have  a current  of  twelve  miles 
an  hour  on  a five  feet  depth,  and  that  this  is  only  navigable  at  the 
medium  and  liigh  stages  of  the  stream. 

This  ex})erience,  recorded  by  the  Oovernment  Engineers  in  their 
reports  of  ’85  and  ’91,  and  testified  to  personally  by  Gray,  the  testi- 
mony of  men  like  the  defendant’s  experts,  that  navigation  cannot 
be  carried  on  on  a slope  of  six  or  seven,  or  ten  feet  to  the  mile,  is 
simply  annihilating,  and  the  weight  of  their  opinions,  as  experts 
on  such  questions,  is  reduced  to  zero. 

THE  defendant’s  ENGINEERS  AS  EXPERTS  ON  NAVIGABILITY. 

These  expert-s  for  the  defendant  were  called  to  testify  to  a great 
variety  of  things — among  others,  the  effect  of  the  proposed  dam 
on  the  Canal ; but  some  of  them  were  asked  their  opinion  on  the 
navigability  of  the  river.  Their  testimony  on  that  subject  was 
incidental,  and  apparently  not  the  subject  for  which  they  were  pri- 
marily called. 

Among  these  witnesses  were : 

Mr.  Robert  Moore, 

L.  L.  MTieeler, 

J.  W.  Woermann. 

Their  qualifications  and  testimony  on  navigability  were  as  fol- 
lows: ' 

Robert  Moore  (iVbst.,  p.  994  et  seq.). 

‘M  am  approximately  70  years  old.  Reside  at  St.  Louis.  Am 
civil  engineer.  I have  been  the  largest  part  of  my  professional 
career  employed  in  the  location  and  construction  of  railroads. 
* * * My  work  as  a civil  engineer  has  brought  me  into  the 

work  of  river  terminals,  their  location,  construction  and  protec- 
tion ; protection  from  the  action  of  the  water,  from  floods  and 
the  erosion  by  the  currents.  This  includes  protection  from  the 
Mississippi  River.  * * * j ^ member  of  the  Board  of 

Engineers  appointed  by  the  President  to  pass  upon  the  plans 
and  the  value  of  the  work  at  the  mouth  of  the  Brazos  River, 
and  the  value  to  the  Government.  The  3"ear  1897.  That  work 
consisted  of  jetties  built  out  into  the  river  to  deepen  the  chan- 
nel and  to  resist  the  action  of  the  waves.  * * * 

“Tn  1899  I served  as  a member  of  the  engineering  board 


417 


wlioso  task  was  to  proj^are  a j)lan  and  an  estimate  1‘or  a deej) 
water  eliannel  in  the  southwest  pass  of  the  Mississipi)i  liiver. 
The  Eads  jetties  is  the  south  ])ass.  * * 

‘‘In  189()  1 appeared  befoi'e  the  Southern  (valirornia  llarhor 
Board  to  present  the  ('ase  for  the  San  Pedro  Harbor;  that  was 
followed  by  a report  of  the  board  in  favor  of  San  Pedro,  whi(‘h 
was  ratified  by  Congress. 

* # ‘ * * * * * 

“Q.  I show  you  a blue  print  or  profile  of  the  Illinois  River 
and  of  the  Illinois  and  Michigan  Canal,  marked  Woerman  Ex- 
hibit 2.  state  whether  or  not  in  your  opinion  Des  Plaines 
River  as  shown  by  that  profile  was  a navigable  stream. 

I have  examined  the  profile.  It  shows  at  one  point, 
through  the  City  of  Joliet,  a water  surface  which  is  approxi- 
mately from  six  inches  to  eighteen  inches  above  the  bottom, 
that  bottom  being  largely  rock,  as  I understand  from  my  ob- 
servation yesterday.  I should  say  a condition  of  that  kind  was 
inconsistent  with  navigation  in  a commercial  sense.  At  a point 
further  down  it  is  also  a much  steeper  slope,  which  at  one 
point,  where  the  surface  of  the  water  almost  touches  the  bot- 
tom, certainly  less  than  a foot  deep,  on  which  I should  say  the 
same  thing.  That  is  a very  steep  slope  and  a very  shallow  chan- 
nel, somewhat  deeper  until  we  reach  a point  near  the  mouth 
of  the  Kankakee,  where  it  is  an  old  dam  where  the  depth  is 
approximately  zero — I suppose  on  the  dam — but  very  shallow, 
even  without  the  dam.*  I should  not  call  the  river  navigable 
at  that  point.  Yesterday  I went  from  Joliet  to  the  mouth  of 
the  river.  Our  route  was  rather  circuitous  and  not  along  the 
river.  I saw  it  in  Joliet  from  the  Rock  Island  bridge.  I 
should  say  that  on  yesterday  I didn’t  conceive  of  any  com- 
mercial navigation  that  would  undertake  it.”  (Abst.,  p}).  99  f-, 
995,  998,  999.) 

L.  L.  WhEiELeii  (Abst.,  pp.  I2M9  et  seep). 

‘‘Residence,  Sterling,  Iliinois.  Civil  engineer.  Graduated 
IT.  of  M.  in  1874.  Served  under  General  Comstock  in  the  sur- 
vey of  the  northern  and  northwestern  lakes;  also  in  the  Mis- 
sissippi River  Commission’s  office  in  St.  Louis  for  six  years, 
])reparing  data  for  jmblication. 

“Surveyed  the  waterway  from  the  lakes  to  the  Illinois  River 
at  LaSalle  in  1888  to  1890,  under  Major  W.  L.  Marshall.  Since 
then  have  been  on  the  Hennepin  Canal. 

“Became  familiar  with  the  river  from  Joliet  upwards  to 
Summit.  Below  Joliet  I went  down  and  through  in  a skiff. 
Below  the  Sag  Bridge  (up  above  Lockport)  we  crossed  a num- 
ber of  places  by  simply  going  from  stone  to  stone  without  hav- 
ing gotten  into  the  water  to  get  our  feet  wet.  We  ran  on  to 
boulders  and  parti v capsized  at  Treat’s  Island.  (Abst.,  pp. 
1250A1.) 


‘M  should  sa\'  that  it  was  not  navigable  for  (commerce  car- 
ried  in  boats.  It  might  have  been  used  in  times  of  higher 
stages  foi-  Heating  logs  or  timbers  down  stream;  nothing  very 
well  could  cojue  up  stream.  (Al)st.,  ]).  1251.) 

‘^It  was  (jiiite  crooked  in  places.  I do  not  recollect  that  it 
would  have  been  so  crooked  as  to  interfere  with  navigation. 
(Abst.,  p.  1252.) 

“In  my  opinion  it  would  not  have  been  navigable  on  account 
of  the  steep  slope.  (iVbst.,  p.  1252.) 

“I  don’t  recognize  Sheet  18  of  Major  Marshall’s  Keport  as 
one  of  my  own  production.  It  says  so  in  the  title.  It  might 
be  an  imitation.  I don’t  vouch  for  its  authenticity  at  all. 
There  is  no  measurement  that  I personally  took  that  is  record- 
ed there  in  a way  that  I identify  as  mine.  (Abst.,  p.  1265.) 

“My  report  in  1890  said: 

“ ^At  low  water  the  entire  flow  (of  the  Des  Plaines  River) 
passes  in  part  through  the  Ogden  dam,  but  the  greater  portion 
into  the  Canal  through  the  permeable  soil  separating  them.  ’ 

“I  suppose  I meant  that  it  passed  through  the  Des  Plaines 
River  into  the  Ogden  ditch,  and  so  out  into  the  south  branch 
of  the  Chicago  River.  I suppose  that  is  correct. 

“The  statement  that  the  water  passed  into  the  Canal  through 
the  permeable  soil  was  correct. 

“I  meant  to  say  that  these  two  causes  absorbed  and  took  up 
the  entire  flow  of  the  Des  Plaines  River  in  times  of  low  water. 
(Abst.,  p.  1267.) 

“I  don’t  know  how  many  boats  were  maintained  on  the  Hen- 
nepin Canal. 

‘ ^ Our  tow  boat  is  a launch  about  40  feet  in  length,  and  about 
seven  feet  beam,  with  a two-cylinder  gasoline  engine  of  16 
horsepower.  Its  ordinary  draft  is  about  three  feet.  It  will 
tow  towing  barges.  (Abst.,  p.  1272.) 

“One  of  our  barges  is  100  feet  long  and  18  feet  wide,  adapted 
to  carrying  grain  or  coal.  (Abst.,  p.  1273.) 

“I  have  had  charge  of  a construction  fleet  and  boats  in  sur- 
veys. (Abst.,  p.  1274.) 

“I  had  difficulties  in  navigation  at  several  places  on  the  Mis- 
sissippi. I went  ashore  among  snags  and  floundered  about  the 
drift  there  for  12  hours  and  looked  to  be  in  a pretty  bad  case. 
It  was  like  other  boats  that  go  ashore.  They  do  not  go  from 
the  desire  of  those  navigating,  but  because  they  cannot  help 
themselves.  It  was  one  of  the  inherent  difficulties  of  the  situa- 
tion there.  I had  not  sufficient  motive  power  to  control  the 
boat  in  the  high  wind  which  set  up.  I ran  ashore  on  sand  bars 
several  times  against  snags,  when  I did  not  want  to  go  there.  ’ ’ 
(Abst.,  p.  1275.) 


41!) 


J.  \V.  \\4)kkiviann  (Absi.,  pp.  1428  et  scHp). 

‘^]\osideii(‘o,  (4ii(*;pi>;() ; ocH'iipatioii,  civil  eiig’ineor. 

I am  in  the  employ  of  the  defendant  in  connection  with  this 
case.  Prior  to  tlie  case  1 was  in  the  employ  of  Mr.  Mead,  tlieir 
resident  engineer  in  charge  of  the  construction  of  the  works. 

‘^Graduated  at  Washington  University,  St.  Louis,  in  1889. 
Assisted  Mr.  MHieeler  in  the  Marshal  survey  in  1889-1890. 
M^orked  on  the  La  Grange  dam  in  the  Illinois  River  in  1890; 
w^orked  on  the  Missouri  River  in  1890 ; in  1894-2  on  the  Henne- 
pin Canal. 

^‘1902-1905  I was  in  charge  of  the  surveys,  maps,  plans  and 
estimates  for  the  14-foot  waterway  from  Loclqoort  to  the  Mis- 
sissippi. (Abst.,  p.  1431.) 

‘ ‘ I Tvrote  that  part  of  Document  No.  263.  It  is  signed  by  me, 
I went  from  Joliet  to  the  mouth  of  the  river  in  a skiff — once  in 
1899  and  once  in  1904.  (Abst.,  p.  1432.) 

^ ‘ The  Des  Plaines  River  is  not  navigable.  ’ ’ (Abst.,  p.  1455.) 

This  is  the  witness  who  prepared  and  reported  to  the  Govern- 
ment, before  he  came  under  the  pay  of  the  defendant,  the  follow- 
ing statements : 

^Mn  order  to  ascertain  whether  the  currents  which  obtain  in 
the  upper  Illinois  and  lower  Des  Plaines  rivers  during  extreme 
high  water  woidd  prohibit  navigation  at  such  times,  the  veloci- 
ties were  computed  at  16  points  between  Utica  and  Joliet  for 
the  highest  water  on  record  for  each  station.  These  results, 
which  are  shown  in  the  following  table,  are  based  upon  the  fol- 
lowing field  measurements,  and  are  entirely  independent  of  any 
assumptions  or  theories. 

******* 

^^This  table  is  designed  to  show  the  greatest  velocities  which 
occur  from  Utica  to  Joliet.  A study  of  the  table,  in  conjunc- 
tion with  the  profile,  indicates  that  from  Utica  to  the  foot  of 
Moore’s  Island,  a distance  of  12.3  miles,  the  maximum  velocity 
varies  from  2.8  to  3.6  miles  per  hour.  From  the  foot  of 
Moore’s  Island  to  the  middle  of  Bell’s  Island,  a distance  of 
2.3  miles,  the  velocity  increases  to  4.3  miles  per  hour.  Prom 
this  point  upstream  the  velocity  continues  to  increase  as  we 
approach  the  Marseilles  dam,  which  is  247  miles  from  Grafton. 
One  mile  below  the  dam  the  velocity  was  5 miles  per  hour. 
Just  below  the  dam  it  has  been  impossible  to  compute  the 
velocity,  as  there  is  not  sufficient  data  on  hand,  but  it  was  prob- 
ably not  less  than  7 miles  per  hour.  From  the  Marseilles  dam 
to  Seneca,  a distance  of  4.4  miles,  the  velocity  varies  from  3.5 
to  4.1  miles,  the  greater  value  being  found  at  only  one  section. 
From  Seneca  to  Patterson  Island,  at  the  head  of  Lake  Joliet,  a 
distance  of  32.7  miles,  the  maximum  velocities  vary  from  2.1  to 
3.1  miles  per  hour.  There  are  two  exceptions  to  this,  viz.,  at 


tli(‘  iiioiitli  of  the  Des  Plaines  River  and  at  Treat’s  Island, 
wliere  it  is  impossible  to  ('onipnte  the  veloeity,  as  there  are  not 
snllieient  data  on  hand.  It  would  probably  not  exceed  4 miles 
{)er  bom*,  at  either  plac'e,  for  a distance  of  about  one-lialf  mile, 
Pi‘o(‘eedini>'  up  stream  from  Lake  Joliet,  the  velocity  increases 
np  to  Dam  No.  1 at  Joliet.  At  the  Jetferson  street  bridge  the 
('ompiited  velocity  is  7.4  miles  ])er  hour  for  the  flood  of  1904. 

‘'From  the  ])re(‘eding  investigation  it  has  ])een  decided  that 
the  velocities,  ivliicli  obtain  dnrinfj  extreme  high  mater  are  pro- 
hibitive  onlt/  below  the  Marseilles  and  Joliet  dams.  Under  the 
adopted  project  a canal  about  J miles  long  has  been  provided 
along  each  of  these  sections.  The  velocity  from  the  Marseilles 
dam  to  Seneca,  viz.,  J.5  to  4.1  miles  per  hour,  is  obstructive  to 
navigation,  but  not  prohibitive,  and  as  these  floods  occur  only 
at  rare  intervals  and  are  of  short  duration,  it  is  not  considered 
necessarg  to  leave  the  river  bed  at  this  section.  The  same  re- 
marks a])i)ly  to  the  section  just  below  the  proposed  canal  at 
Marseilles,  and  to  the  short  sections  at  the  mouth  of  the  Kan- 
kakee River  and  at  Treat’s  Island.”  (House  Report,  59th 
Congress,  Doc.  No.  263,  pp.  40-41.) 

This  re])ort  is  signed  by  the  witness  Woermann  on  page  68. 

AVhen  he  was  working  for  the  Government  and  studying  the  navi- 
gation problem  and  ascertaining  whether  the  currents  in  the  upper 
Illinois  and  lower  lies  Plaines,  during  the  extreme  high  water, 
would  prohibit  navigation,  he  found  that  “the  velocities  which 
obtain  during  extreme  high  water  are  prohibitive  only  below  the 
Marseilles  and  Joliet  dams.  Under  the  adopted  project,  a canal 
about  3 miles  long  has  been  provided  along  each  of  these  sections.” 
The  velocity  from  the  Marseilles  dam  to  Seneca,  viz.,  3.5  to  4.1  miles 
per  hour,  is  obstructive  to  navigation,  but  not  prohibitive,  and  as 
these  floods  occur  only  at  rare  intervals  and  are  of  short  duration, 
it  is  not  considered  necessary  to  leave  the  river  bed  at  this  section 
The  same  remarks  apply  to  the  section  just  below  the  proposed 
canal  at  Marseilles,  and  to  the  short  sections  at  the  mouth  of  the 
Kankakee  River  and  at  Treat’s  Island. 

That  was  the  testimony  of  Mr.  AVoermann  on  the  navigability  of 
the  lower  Des  Plaines,  when  he  was  employed  by  the  Government  to 
investigate  that  subject. 

AVhen  he  was  employed  by  the  Economy  Light  & Power  Company 
and  by  this  resident  engineer,  Mr.  Mead,  to  help  complete  a dam, 
then  be  was  very  certain  that  the  Des  Plaines  River  was  not  navi- 


gable.  A eliange  liad  eonio  over  Iiis  opinion.  The  reason  lor  the 
change  is  readily  found  in  tlie  nature  of  his  employment. 

Tliis  is  a suitable  illustration  of  the  statement  of  Woodson  that 
experts  ‘‘as  a class  liave  become  the  retained  agents  of  the  par- 
ties,’’ and  of  the  remark  of  Judge  Cooley  in  42  Mich.,  206:  “To 
obtain  such  evidence  is  expensive  * * * array  may  be 

liad  if  the  court  will  consent  to  their  examination ; and  if  legal  con- 
troversies are  to  be  determined  by  the  preponderance  of  voices, 
wealth  in  all  litigation  in  which  expert  evidence  is  important  may 
prevail  almost,  of  course.” 

It  is  a typical  sample  of  the  condition  referred  to  by  Mr.  Jusiice 
Millee,  in  4 Dillon,  448,  thus:  “Whenever  the  matter  in  contest 
involves  an  immense  sum  in  value,  and  where  the  question  turns 
mainly  upon  opinions  of  experts,  there  is  no  difficulty  in  introducing 
any  amount  on  either  side.” 

It  must  indeed  be  expensive  to  induce  an  employe  in  the  Gororn- 
ment,  who  has  rendered  such  an  illuminous  report  in  favor  of  the 
navigation  of  a stream,  to  go  upon  the  witness  stand  and  swear  that 
it  is  not  navigable. 

Nor  is  the  matter  aided  by  the  labored  ex})lanation  made,  that  he 
found  some  objections  to  its  navigability^ — such  as  “boulders,” 
“slopes”  and  “sinuosities,”  which  were  not  mentioned  in  his 
report  to  the  Government. 

This  is  the  severest  possible  indictment  of  the  good  faith  of  the 
witness : to  say  that  he  would  make  a report  on  the  subject  to  the 
Government,  and  kee})  silent  on  those  very  elements  which  he  finds 
controlling  now. 

We  respectfully  submit  that  Woermann,  the  Government  em- 
ployee, is  more  worthy  of  credence  than  Woermann,  the  defend- 
ant’s employee. 

Woermann ’s  actual  knowledge  of  navigation  is  not  personal. 

He  said:  “I  am  (not)  aware  of  the  fact  that  barge  naviga- 
tion has  been  carried  on  throughout  wide  reaches  in  the  Mis- 
sissippi River  under  fixed  bridges.  I know  that  they  were  not 
on  the  lower  Mississippi;  I mean,  the  Mississippi  itself;  but  I 
don’t  know  about  the  tributaries  of  the  Mississippi  comprising 
the  Mississippi  Valley.” 


It  was  on  tills  that  Major  Marshall  said,  in  the  report  of  the  sur- 
vey in  which  Mr.  AVoennann  assisted,  in  referring  to  the  list  of 
steamboats : 

‘‘It  includes  all  the  powerful  tow  boats  of  the  Pittsburg  Coal 
(Companies,  of  tbe  Iron  Transportation  Companies,  and  of  the 
Alississippi  Valley  Transportation  Companies,  as  well  as  the 
lumber  rafting  boats  on  the  upper  Mississippi  River.  Ninety- 
five  per  cent  or  more  of  the  commerce  in  tonnage  of  the  west- 
ern rivers  is  carried  on  by  the  boats  of  this  class,  or  in  barges 
propelled  by  them.”  (Alarshall  Report  of  1890,  Ex.  Doc.  No. 
264,  p.  7 ; Abst.,  p ) 

The  tendency  of  AMoermann  to  exaggerate  in  favor  of  his  new 
employer  is  shown  by  his  testimony  on  the  slopes.  (Abst.,  p.  1445.) 

“A^^ell,  in  the  main  channel,  near  the  head  (of  Treat’s 
Island)  there  is  a slope  of  17  feet  to  the  mile.  Near  the  foot 
there  is  a slope  of  18  feet  to  the  mile.  Over  in  the  right  hand 
channel  there  is  a slope  in  one  place  of  50  feet  per  mile,  per- 
haps for  a distance  of  500  feet  or  so ; or  a still  shorter  distance, 
you  collide  find  still  steeper  places.  A¥ell,  at  Smith’s  bridge, 
where  I gave  a fall  of  2.7  feet  in  a mile,  if  yon.  take  the  steepest 
portion,  probably  it  would  be  10  or  12  feet  to  the  mile  for  a 
short  distance  near  the  bridge;  perhaps  for  four  or  five  hun- 
dred feet.  The  same  way  at  the  mouth,  where  I gave  the  fall 
as  about  3 feet  and  a half  a mile.  The  fall  at  one  point  was 
steeper  than  anything  I found  at  Treat’s  Island;  that  is, 
steeper  than  I found  in  the  main  channel  at  Treat’s  Island,  I 
should  judge  20  feet  to  the  mile.”  (Abst.,  pp.  1445-1446.) 

As  we  have  seen  elsewhere:  if  a cobblestone  three  inches  in 
diameter  projected  upward  in  the  bottom  of  the  stream  for  three 
inches,  the  water  going  immediately  over  the  top  of  that  cobble 
stone  would  descend  three  inches  downward  while  traveling  three 
inches  forward.  This  would  be  a slope  for  that  short  distance  at 
the  rate  of  5,280  feet  per  mile,  and  “for  a still  shorter  distance  you 
could  find  still  steeper  places.” 

The  attempt  of  AA^oermann  to  compel  the  boat  to  go  down  the 
right  hand  channel  was  another  perversion,  the  Cooley  profile,  the 
Alarshall  profile  and  the  earlier  testimony  of  witnesses  all  showing 
that  the  left  hand  channel  was  the  wider,  the  deeper  and  the  better. 

Another  sample  perversion  of  Air.  AA^oermann  was  the  taking  of 
the  profile  of  1867  and  platting  it  together  with  a profile  of  his  own 
compiling,  as  “AAmermann  Exhibit  D”  (iAbst.,  p ) : 

“It  is  made  on  what  is  called  millimeter  paper,  but  I did  not 


use  tlie  ineirie  system.  Wliile  it  is  i)riute(l  niid  sold  for  milli- 
meter purposes,  I substituted  feet  and  tenths  of  feet  for  milli- 
meters. As  to  the  scale  of  tliis  ])rofile  of  mine  in  length,  each 
of  these  centimeter  squares  represents  1,000  feet. 

‘‘One  of  those  squares  would  represent  5,000  feet  in  length 
and  five  feet  in  elevation,  so  that  the  scale  is  1,000  times  mag- 
nified in  vertical  ranges  as  compared  with  the  horizontal  range. 
This  magnifying  of  a vertical  scale  of  1,000  to  1 does  not  occur 
as  much  as  that,  I don’t  think  on  the  profile  of  1867.  And  it 
does  not  occur  in  the  Government  profile  of  1904-5.  I could 
just  as  well  have  made  it,  instead  of  making  it  1,000  to  1,  I 
could  have  made  it  100  to  1,  if  I had  wanted  to.”  (Abst.,  p. 
1474.) 

The  Cooley  Exhibit  3,  the  Consolidated  Profile,  is  drawn  on  a 
horizontal  scale  of  2,000  feet  to  the  inch  and  a vertical  scale  of  10 
feet  to  the  inch — or  a magnifying  of  200  to  1,  as  to  which  Mr. 
Cooley  said : 

“It  is  customar}^  to  exaggerate  the  vertical  scale  sufficiently 
to  visualize  the  slopes  and  declivities  (Abst.,  p.  814),  and  as  to 
the  method  by  which  the  profile  was  drawn — it  is  an  approved 
and  accepted  method  among  engineers.  ’ ’ (Abst.,  p.  812.) 

Woermann  stated  on  direct  examination  that  the  year  1867  was 
not  an  abnormal  year  of  low  water.  (Abst.,  p.  1446.) 

His  attention  was  then  called  on  cross-examination  to  the  state- 
ment of  Gen.  James  H.  IVilson,  December  17,  1867,  in  returning 
the  re})ort  in  wliich  he  described  the  season  as  “the  present  ex- 
cessively dry  season.”  And  again  to  the  statement  made  in  De- 
cember, 1867,  l)y  James  Worrall,  assistant  to  General  Wilson,  and 
directed  to  General  l¥ilson,  published  in  Executive  Document  No. 
1,  40th  Congress,  Third  Session,  No.  2,  page  464,  in  which  he  said: 

“The  de])ths  are  reduced  almost  every  season  upon  the 
shallows  in  the  bed  of  the  stream,  until  they  do  not  exceed  an 
average  depth  of  20  inches,  thus  in  fact  suspending  naviga- 
tion for  periods  varying  from  60  to  90  days,  and  extending 
sometimes,  as  in  the  season  last  passed,  to  a period  of  150 
days/’ 

Mr.  Woermann  said  that  he  had  read  the  statement,  but  did  not 
have  it  in  mind  when  he  said  the  season  of  1867  was  not  abnormally 
low. 

The  average  of  60  and  90  is  75,  and  150  is  just  double  that 
amount.  Mr.  ¥Voermann,  in  preparing  as  an  expert  agent  for  the 


4L4 


(lefense  to  attack  tlio  river,  took  tlie  protile  of  1867  as  his  standard, 
and  said  that  it  was  not  an  ahnornially  low  year,  altliough  the  re- 
port whi(*!i  a(*('onii)anied  that  profile  pi’ononneed  it  an  excessively 
dry  season  and  stated  that  navigation  was  suspended  in  tliat  year 
foi-  double  the  ordinary  time. 

Mr.  AVoerniann  brought  in  a sketch  putting  the  Adam  dam  and 
the  proposed  dam  in  cross  section  side  l)y  side,  and  making  tlie 
proposed  dam  look  very  much  like  the  iVdam  dam. 

Not  until  it  was  brought  out  under  pressure  of  cross-examina- 
tion, did  he  admit  the  following: 

“This  map  has  undergone  some  sort  of  an  alteration.  There 
is  a scpiare  there  that  is  perhaps  six  inches  high  and  ten  inches 
long,  embracing  the  dam  here,  that  has  been  pasted  on.  That 
])rint  as  made  was  a copy  of  the  original,  which  was  on  manila 
paper,  which  was  introduced  as  Woermann  Exhibit  1.  That 
is  a blue  line  print.  The  original  was  made  hurriedly,  without 
my  making  an  examination  as  to  the  wall  on  the  inside.  I 
knew  from  memory  that  there  was  a vertical  wall  there,  but  I 
didn’t  know  tliat  it  went  clear  to  the  bottom.  After  it  was 
made,  while  the  case  here  was  in  progress,  I went  down  there 
one  day  and  examined  that  all  along  there  with  an  iron  rod 
and  found  that  wall  continued  on  that  same  base  which  was 
visible  above  the  water  clear  down  to  the  bottom  of  the  canal, 
so  I changed  that  feature  of  it.  Rather  than  make  an  entire 
new  tracing,  I just  had  the  draftsman  paste  a piece  of  paper 
on  there.  The  Woermann ’s  Exhibit  1 that  I had  in  mind  is  in 
this  room.  Changing  that  wall  would  change  the  thickness  of 
the  embankment.  Further  than  that,  there  are  no  other 
alterations  that  I recall. 1’  (Abst.,  pp.  1480-1.) 

We  submit  that  such  a silent  alteration  of  an  exhibit  during  the 
recess  of  the  Court  without  calling  attention  to  the  same  when  they 
were  made,  and  leaving  the  same  to  be  discovered  or  not  by  the 
cross-examiner;  and  when  discovered,  the  admission  that  the 
“original  was  hurriedly  made  without  making  any  examination,” 
would  be  sufficient  in  itself  to  cast  suspicion  upon  the  entire  testi- 
mony of  the  witness. 

And  when  this  witness  is  the  one  who  now  testifies  in  effect  to 
the  contrary  of  what  he  reported  to  the  Government  and  explains 
it  by  referring  to  matters  which  he  omitted  (“suppressed!”)  from 
his  report  to  the  Government,  it  is  clear  that  the  testimony  of 


tills  witness  is  not  to  ho  ro>»’iir(lo(l  ns  against  tlio  ovidonoo  (lontainod 
in  tlio  rojiort  to  tlio  govorninont. 

Anotlior  explanatory  attempt  by  or  in  belialt  ol*  the  del'endant’s 
expert  agent,  Woermann,  was  that  his  report  on  the  survey  of 
1904-5  I'elated  to  a waterway  made  by  locks  and  dams,  and  there- 
fore, it  was  said,  it  signified  nothing  as  to  the  natural  navigability 
of  the  river,  except,  perhaps,  to  signify  that  it  was  not  navigable 
naturally. 

But  this  is  a mere  attempt  to  obscure  the  situation.  His  report 
says  (p.  40)  : 

‘Hn  order  to  ascertain  whether  the  currents  which  obtain  in 
the  upper  Illinois  and  lower  Des  Plaines  during  the  extreme 
high  water  tvould  prohibit  navigation  at  such  times.  The 
velocities  were  computed  at  16  points  between  Utica  and  Joliet, 
for  the  highest  ivater  on  record  for  each  station.’’’ 

Mark  the  present  tense— Uhe  currents  which  obtain” — that  is, 
which  now  exist  in  the  river  as  it  is. 

^^From  Seneca  to  Patterson  Island,  at  the  head  of  U^ke 
Joliet,  a distance  of  32.7  miles,  the  maximum  velocities  vary 
from  2.1  to  3.1  miles  per  hour.  There  are  two  exceptions  to 
this,  viz.,  at  the  mouth  of  the  Des  Plaines  River  and  at  Treat’s 
Island,  where  it  is  impossible  to  compute  the  velocity,  as  there 
are  not  sufficient  data  on  hand.  It  would  probably  not  exceed 
four  miles  per  hour  at  either  place  for  the  distance  of  half  a 
mile.  ^ ^ ^ 

At  the  Jefferson  street  bridge  the  computed  velocity  is  7.4 
miles  per  hour  for  the  flood  of  1904.  From  the  proceeding  in- 
vestigation it  has  been  decided  that  the  velocities  which  obtain 
during  extreme  high  water  are  prohibitive  only  below  the  Mar- 
seilles and  Joliet  dams.  Under  the  adopted  project  a canal 
about  three  miles  long  has  been  provided  along  each  of  these 
sections.  The  velocity  from  the  Marseilles  dam  to  Seneca, 
viz.,  3.5  to  4.1  miles  })er  hour,  is  obstructive  to  navigation,  but 
not  prohibitive;  and  as  these  floods  occur  only  at  rare  intervals 
and  are  of  short  duration,  it  is  not  considered  necessary  to 
leave  the  river  bed  at  this  section.  The  same  remarks  apply  to 
the  section  just  below  the  proposed  dam  at  Marseilles  and  to 
the  short  sections  at  the  mouth  of  the  Kankakee  Biver  and  at 
Treat’s  Island.” 

The  entire  report  shows  that  the  computation  is  as  to  the  veloci- 
ties which  obtain  under  existing  conditions  in  the  highest  known 
state  of  water. 

It  is  perfectly  obvious  that  with  the  introduction  of  a series  of 


locks  and  dams,  su(*li  as  that  project  called  for,  the  current  would 
be  reduced  to  any  degree  desired.  The  current,  as  talked  about 
here  by  this  report,  is  the  current  found  under  existing  conditions 
in  the  Des  Plaines  and  Illinois  rivers;  and  it  is  equally  obvious  that 
to  talk  about  there  being  a current  under  existing  conditions  which 
makes  the  river  as  a whole  non-navigable  is  an  exaggeration  and  a 
pretense  to  justify  an  attempt  to  appropriate  to  private  uses  a 
great  public  right. 

And  it  is  further  equally  obvious  that  the  statement  of  this  wit- 
ness now  that  the  river  is  too  swift  to  navigate  is  directly  contra- 
dicted by  his  unbiased  statement  to  the  Grovernment  and  the  public 
made  then. 

Another  illustration  of  Mr.  Woermann’s  perversion  is  found  in 
his  treatment  of  the  Eiverside  gauge.  The  circumstances  attend- 
ing this  were  as  follows : 

In  the  cross-examination  of  Francis  Belz,  Mr.  Munroe,  for  the 
defendant,  asked  the  witness:  ‘^Don’t  you  know  it  is  a matter  of 
history  that  the  Des  Plaines  River  and  the  Chicago  River  never 
met  but  once,  and  then  it  was  caused  by  an  ice  gorge  in  the  river 
backing  the  river  up!”  The  witness  answered,  ^MTgh!”  (Abst., 
p.  4-1-3.) 

This  was  the  position  of  the  defense. 

This  the  State  annihilated  by  putting  in  the  following  testimony 
from  Engineer  Lyman  E.  Cooley : 

‘M  measured  the  stream  at  Riverside  at  various  times  in 
1886,  and  also  in  the  floods  of  1887.  I establisbed  a gauge  at 
Riverside  in  May,  1886.  This  gauge  was  about  a half  a mile 
above  the  township  line,  by  the  course  of  the  river,  in  the  south- 
east quarter  Section  26,  Town  39,  Range  12  East. 

The  proposed  new  dam  is  marked  as  a little  to  the  left  j)r 
vcest  of  the  eighteen-mile  point.  Those  two  points  are  15.6 
miles  apart.  Then  there  would  be  a fall  of  38.1  in  15.6  miles, 
or  in  round  numbers  24  feet  to  the  mile  as  an  average.  These 
lines  here  across,  with  the  second  feet  level  and  low  water 
and  high  water  levels  indicate  totals  of  waters  in  the  river 
itself. 

1 am  ac(piainted  with  the  dimensions  of  the  Sanitary  Dis- 
trict Channel.  The  channel  in  the  Rock  Cut  for  something 
less  than  seventeen  miles  between  Willow  Springs  and  the 
terminus  at  Lock])ort  has  a ])ottom  width  of  160  leet  and  width 


427 


at  water  lino  ot*  1()2  I'eet,  and  depth  wlnni  running’  to  its  rull 
('apaeity  ot*  24  feet  at  standard  low  wat(‘r  of  Lake;  Michigan 
when  tilled.  By  full  capacity,  I mean  14, ()()()  cubic  teet  ol*  watei* 
per  second,  for  whi(*h  tlie  Sanitary  (kinal  is  desigruM].  It  nev(ir 
Jias  run  tliat  much,  unless  possibly  in  an  endeavor  to  g(*t  rid 
of  some  hood  water  out  of  (diicago. 

As  to  the  normal  and  ordinary  flow  in  the  Sanitary  District 
(diannel  at  this  time  and  since  it  was  o])ened  in  1900,  the  chan- 
nel was  opened  on  the  basis  of  5,000  cubic  feet  of  water  per 
second,  but  was  limited  by  regulation  of  tlie  War  l)e])artment 
to  4,200  cubic  feet  of  water  per  second  during  the  season  of 
navigation  in  the  Chicago  Eiver..  In  the  closed  season  it  has 
been  operated  for  5,000  feet  to  6,000  cubic  feet  of  water  per 
second. 

The  closed  season  of  navigation  on  the  Chicago  River  is 
that  in  which  lake  boats  do  not  traverse  the  lakes  and  averages 
about  four  months.  That  would  be  the  winter  months,  some 
time  in  December  to  the  time  that  the  Straits  of  Mackinaw 
open,  some  time  in  April.  And  during  that  period  it  runs 
say  up  to  6,000  cubic  feet  of  water  per  second.  The  Govern- 
ment limit  has  not  been  applied. 

But  when  the  navigation  season  is  open  on  the  Chicago 
River,  then  it  is  under  the  Government  regulation  and  the  dis- 
charge is  limited  to  4,200  feet  per  second. 

* * * 

A continuous  record  has  been  maintained  ever  since  on  tliis 
gauge,  with  the  exce])tion  of  the  years  1890  and  1891. 

The  catchment  area  is  the  watershed  or  gathering  ground 
from  wliich  the  waters  How  whicli  the  river  has  to  drain. 

The  average  rainfall  in  this  district  is  22.9  inches  per  an- 
num. That  is  taken  from  the  Government  record  from  1842 
to  1907  inclusive,  a ])eriod  of  65  years.  The  average  is  22.9 
inches.  1881  was  the  great  and  (hiaracteristic  flood,  which  we 
have  been  able  to  assign  and  study  most  (hosely.  The  volume 
of  water  in  the  lies  Idaines  River  at  the  time  of  that  flood 
was  12,500  cubic  feet  of  water  ])ei‘  sec'ond.  The  date  wlien  the 
water  reached  that  amount  was  in  Ai)ril. 

I have  classified  or  assembled  the  data  of  these  stages  of 
water  shown  in  the  Des  Plaines  River  by  the  Riverside  gauge. 
I have  tabulated  for  19  full  years  since  1887  the  num])er  of 
days  at  which  the  gauge  at  Riverside  has  stood  at  or  above  a 
certain  elevation.  The  first  of  these  is  18  feet,  one  imhi,  or  18 
feet  above  Chicago  datum  corres])onds  to  a,  volume  of  4,500 
second  feet,  which  is  a flood  stage  in  the  Des  Plaines  River, 
and  during  the  19  years  the  river  has  t)een  at  or  a])ove  such 
flood  stage  for  an  aggregate  of  72  days.  This  flood  stage 
corres])onds  for  great  floods  to  an  elevation  of  16  feet  and 


upwards  in  llic*  twelve  mile  level  to  tlie  (le})tli  of,  in  extreme 
flood,  five  feet  i)assin^'  ovei*  the  original  (-hicago  divide  at 
Kedzie  avenue  into  the  (diieago  River.  1 would  say  in  that 
pai't  of  the  (7hi('ago  River  oi*  the  south  Ijramhi  thereof  witli 
its  two  forks,  where  the  route  overflows  from  the  time  of  the 
dis('ovei‘y,  and  that  the  south  fork  was  )naintained  thereby. 

1 state  that  this  elevation  of  18  feet  had  occurred  in  73  days. 
That  re])resents  a volume  of  4,500  second  feet  and  upwards, 
ddiere  were  floods  in  that  ])eriod,  one  which  I measured  |)ar- 
ticularly  in  1887  which  ran  something  over  10,000  feet,  and 
7,000  feet,  of  which  I got  measurements  in  the  west  fork  of 
the  (diicago  River. 

An  elevation  of  18  feet,  as  recorded  on  the  Riverside  gauge 
as  })roducing  4,500  second  feet  of  water,  did  not  all  go  down 
the  Des  Plaines — it  does  in  nature.  It  divides,  a portion  of  it 
coming  by  way  of  the  old  Portage  trail  and  swamp  through 
the  Chicago  River.  I have  made  an  estimate  some  years  ago 
tliat  flood  stages  range  from  three  to  five  feet  in  depth  over 
the  Chicago  divide.  4,500  second  feet  of  itself  would  probably 
cross  to  a de])th  in  the  vicinity  of  three  feet  and  the  extreme 
floods  to  a depth  as  great  as  five  feet,  coming  into  the  Chicago 
River. 

The  second  tabulation  which  I have  made  corresponds  to 
an  elevation  of  13.8  feet  upon  the  Riverside  gauge,  and  to  a 
level  opposite  Summit  in  the  12  mile  level  and  in  the  Portage 
swamp  region  of  11.7  feet,  and  to  a depth  upon  the  original 
Chicago  divide  at  Kedzie  avenue  of  15  inches,  or  thereabouts. 
At  that  stage  of  water  and  for  the  number  of  days  a boat 
could  pass.  The  zero  on  the  Riverside  gauge  is,  Chicago  City 
datum,  and  these  elevations  refer  to  elevations  of  v/ater  sur- 
face as  read  upon  that  gauge  above  Chicago  City  datum.  Tliat 
is  the  top  of  the  v/ater;  the  elevation  of  the  botfom  of  the 
liver  at  this  Riverside  gauge  at  the  extreme  low  water  at 
that  point  is  11.4  feet  above  Chicago  datum.  That  is  the  low 
water  level. 

The  bottom  of  the  river  I do  not  now  recall.  They  are  not 
tlie  same.  There  is  a pool  there,  I believe. 

As  to  the  elevation  of  13.8  feet  on  the  Riverside  gauge,  it 
has  prevailed  in  a period  of  19  years  on  an  average  of  46.2 
days  per  year,  or  a total  of  879  days.  13.8  feet  would  be  about 
two  feet  of  water,  that  gives  in  the  Des  Plaines  River, — 
about  1,052  second  feet. 

That  water  under  original  conditions  would  divide,  and  the 
depth  of  the  Chicago  divide  I have  estimated  as  about  fifteen 
inches. 

I mean  during  those  46.2  days  per  annum,  during  these  nine- 


tlio  C'^hic'ngo  I\iver  Troin  Dos  Pln‘m(‘s. 

Tlio  next  olass  into  vvliic'li  I have  tal)iilal(‘(l  lh(*s(;  ^ansi;(;s, — 
1 have  tabulated  for  the  time  at  whi(‘h  the  watei*  has  pia^vai  1(h1 
at  an  elevation  of  13  feet  or  more  upon  the  Itiverside  ^an«(‘, 
said  elevation  eorrespondin<>  to  a volmiH;  of  (iOO  sec'ond  teed, 
and  eorres})onding  also  to  an  elevation  of  about  10^  feet,  in 
the  twelve  mile  level,  and  Portai>‘e  swamp,  oi-  the  elevation 
as  nearly  as  ean  l)e  determined  of  the  original  divide  at  Kedzie 
Avenue.  That  stage  of  water  has  prevailed  for  1,339  days,  or 
an  average  of  70.4  days  per  year.  The  entire  l)ody  of  water 
in  the  Des  Plaines  Eiver  at  that  elevation  would  go  down  the 
river, — in  the  absence  of  the  artificial  interferences  that  liave 
occurred  since, — except  such  as  may  liave  passed  Through  the 
narrow  drain  mentioned  by  Major  Long  as  l^eing  cut  below 
the  level  of  the  divide. 

The  tliird  classification  which  I have  made  corresponds  to 
an  elevation  of  12.4  feet,  upon  the  Eiverside  gauge;  or  al)ove, 
and  this  is  the  equivalent  of  305  second  feet  on  the  Eiverside 
gauge,  or  at  the  Eiverside  gauge,  and  of  an  elevation  of  9.0 
feet  in  the  12  mile  level.  The  river  was  at  or  above  this  gauge 
in  19  years  for  2,028  days,  or  an  average  of  100.7  days  per 
year. 

The  average  rainfall  during  these  19  years  from  the  Govern- 
ment re])orts  is  30.75  inches  or  a deficiency  of  3.15  inches  per 
annum  during  19  years.  1 mean  that  this  period  of  19  years 
in  which  1 have  tabulated  the  re])ort  in  this  way,  that  the  an- 
nual rainfall  is  3.15  less  inches  per  annum  than  the  fall  for 
the  entire  period  that  you  have  given.  This  was  a period  of 
exceptional  draught.  The  range  during  that  19  years  was  24 
inches  and  37  inches,  I think. 

1 have  summarized  this  tabulation  all  together  on  one  sheet 
that  I have  been  testifying  about. 

* * ' ■*  «=  -X-- 

The  extreme  low  water  level  recorded  on  Eiverside  gauge 
was  11.4  feet.  The  extreme  low  water  level  in  the  12  miles 
level  was  8 feet  above  Chicago  datum.  That  would  be  about 
8 inches  at  the  minimum  places  in  the  river.”  (Abst.,  pp.  806, 
818,  819,  820,  821,  822,  823.) 

The  tabulation  referred  to  by  the  witness  is  as  follows: 

Eiverside  Gauge — Tabulation  of  Plow. 

Number  of  days  at  which  the  Eiverside  Gauge  stood  at  or 
above  certain  elevations,  in  nineteen  full  years, — 1887  to  1907 
inclusive. 

(a)  Elevation  18  ft.  corres])onding  to  tbe  (bust  of  Spill- 
way at  Elevation  16.25  ft.  and  a volume  of  4500  second-feet. 


(h)  Klevjition  of  lo.S  ft.  ('orrc^spoTidirig  to  (d*est  of  Ogden 
Dam  at  Dlevation  11.7))  ft.  and  n volume  of  1052  Heeond-feet. 

(e)  Olevation  15  ft.  eorrespoiiding  to  original  Cliicago  T)i- 
vid(‘  at  Klevation  10.5  ft.  at  Summit,  and  volume  000  second- 
feet. 

(d)  Elevation  12.4  ft.  corresponding  to  Elevation  9.0  ft.  at 
Summit  in  Twelve-Mile  Level,  and  volume  305  second-feet. 


(a) 

18.0 

('>) 

i;i.,s 

(c) 

l.’l.O 

(^1) 

12.4 

Precipitation  at 
Cliicago. 

1887 

5 

75 

89 

172 

2913 

1888 

42 

90 

90 

30.86 

1889 

35 

01 

100 

34.95 

1892 

7 

00 

07 

73 

36.50 

1893 

5 

54 

80 

105 

27.47 

1894 

3 

29 

04 

103 

27.46 

1895 

1 

15 

21 

34 

32,38 

1890 

12 

33 

119 

33.14 

1897 

9 

77 

99 

134 

25.85 

1898 

0 

40 

50 

93 

33.77 

1899 

30 

42 

81 

26.49 

1900 

37 

49 

90 

28.65 

1901 

5 

25 

31 

38 

24.52 

1902 

04 

117 

170 

37.57 

1903 

6 

05 

94 

151 

28.09 

1904 

11 

45 

01 

74 

26.14 

1905 

5 

37 

57 

105 

35.36 

1900 

2 

40 

78 

108 

30.87 

1907 

8 

85 

150 

182 

35.10 

Total : 

19 

73 

879 

1339 

2028 

Average : 

4 

46.2 

70.4 

106.7 

30.75 

The  data  for  1905,  1906  & 1907  from  Sanitary  District  tabu- 
lation of  flow  through  Des  Plaines  River. 

Note:  The  average  rainfall  for  the  37  years,  1871  to  1907, 
is  33.40. 

The  average  rainfall  for  the  28  years,  1843  to  1870  is  34.00. 

The  average  rainfall  for  the  65  years,  1843  to  1907,  is  33.9. 

It  will  he  reinemhered  that  this  gauge,  as  the  witness  stated, 
‘^was  about  half  a mile  above  the  Township  line.”  (Abst.,  p.  806), — 
that  is,  it  was  a half  mile  above  the  Head  of  Navigation,”  marked 
by  the  United  States  suiweyor  in  1821.  It  represented  the  river 
at  a place  half  a mile  above  the  travel  of  the  fur  traders  and  vog- 


(i(/<nirs,  niul  soiiu'  -0  iiiih's  h/)  sfr<unn  (lud  anuiy  from  I hr  reach  of 
river  befjhndnu)  al  Dam  No.  1 and  aa'ai/  from  the  ])lae('  adu'rr  Ihr 
river  is  to  be  used  in  eo)niee(ion  rvith  the  Sanitary  District  eluin- 
v(i  for  naviyaiion  purposes. 

The  g'aii^i^e  was  phu-ed  upon  a t)ar  so  as  to  show  the  mininiuni, 
depth  at  a point  half  a mile  above  the  ‘‘Head  of  Navigation/'  and 
it  was  just  below  the  Iloffmcui  Dam,  which  was  authorized  hy  stal 
nte.  The  defendant’s  witness,  Woermann,  conceded  this.  He  said: 

“The  gauge  readings  show,  and  the  foot  notes  added  hy  the 
gauge  reader  show  that  wdien  the  water  fell  to  11.4  the  bar 
t)elow  the  gauge  was  dry  and  there  was  no  ivater  going  over 
the  bar.  I would  not  like  to  say  how  far  the  so-called  Hoff- 
man Dam  is  up  stream  from  the  Riverside  gauge;  one  can 
tell  by  referring  to  that  statement  of  bridges. 

(Witness  looking  at  ma]:),  Cooley  Ex.,  16;  Atlas,  p.  3954; 
Trans.,  p.  6578;  Abst.,  p.  1927.) 

The  dam  is  just  about  at  this  bridge,  and  the  gauge  is  about 
500  feet  below  that.  I am  referring  now  to  the  little  supple- 
mental map  on  Cooley  Exhibit  16,  which  is  marked  ‘Conti- 
nental Divide,  88’  (Atlas,  p.  3954).  T point  to  a map  that 
goes  diagonally  across  the  river  right  on  the  section  line.  Then 
over  to  the  northeast  of  that  1 point  to  the  Riverside  gauge. 
That  would  make  the  distance  perha))s  one-third  of  a mile 
above  th.e  bridge.  Here  is  a broadening  of  the  river  in  the 
loop  just  above  what  I call  the  dam.  T understood  the  pres- 
ent dam  was  built  at  about  that  point  under  authority  of  law 
by  a statute  of  the  stote.”  (Abst.,  })p.  1485-6.) 

Tn  brief,  the  defense  claimed  that  water  had  never  run  from 
tlie  Des  Plaines  into  the  Chicago  River  but  once.  The  State 
showed  in  reply  that  it  i*eached  a depth  at  the  Divide  which  but 
for  the  Ogden  Dmn  would  run  into  the  Chicago  River  42  days  in 
every  year. 

It  was  on  this  showing  of  the  Riverside  gauge  that  the  witness 
Woermann  made  a compilation  which  occupies  })]).  1433-1439  of  the 
Abstract,  tending  to  show  that  the  discharge  over  the  bar  below 
this  dam  at  Riverside,  one-half  mile  above  the  “Head  of  Navi- 
gation” varied  in  the  19  years  so  that  the  discharge  was  6 inches 
deep  or  less  over  the  bar,  during  periods  varying  from  120  in  1888, 
to  300  days  in  the  exceiAional  year  when  the  river  diversion  was 
in  progress  and  when  the  rain-fall  reached  the  minimum  of  24.52, 
1901. 


4:^2 


Wlint  this  would  show  as  to  the  auioimt  of  water  in  the  river  20 
miles  further  down  stream,  from  Dam.  No.  1 to  its  moutli,  ('ould  he 
as('ertaiu(Ml  if  there  (‘ould  be  added  tliei*eto  tlie  discharge  into  the 
river  of  Mud  Lake  from  1 to  2 miles  below  this  point,  of  the  Little 
Des  Idaiiies,  the  Salt  ( reek  flowing  into  the  Des  Plaines  on  tlie  left 
l)elow  the  gauge,  of  .the  Saganaskee  Swamp  flowing  into  the  Des 
Plaines  several  miles  furtlier  down,  of  Hickory  Lreek,  Pock  Hun, 
Itih'v  (h'eek,  Sugai*  Creek,  S])ring  (h'eek,  the  Ka.nkakee  (.Mt-otT, 
and  the  DuPage  River;  all  of  which  ])ut  into  the  Des  Plaines  in  tlie 
l()-mi!e  reach  with  which  we  are  dealing.  But  without  sho\ying 
the  coni ribvt ions  of  these  streams,  the  figures  at  Riverside  slio’w 
iiotliing  as  to  the  deipth  in  tlie  Ifi-mile  reach.  Tiie  Riverside  gauge 
demonstrates  that  the  uninterrupted  water  communication  existed 
every  sjiring  until  stopped  hy  the  Ogden  Dam. 

(R>o!ey’s  e^  Idence  iihowed  that  at  the  lowest  })oint  in  tlie  river, 
— one-half  mile  above  the  ‘‘Head  of  Xavigaticn”  on  the  bar,  and 
a short  distance  below  the  Hoffman  Dam,- — there  were  72  days 
in  tlie  Id  years  from  1887  to  1907  when  the  rvater  stood  so  deep 
at  this  point  that  it  v/ciild  cause  a stream  five  feet  deep  to  run 
over  the  Chicago  Divide  irdo  the  Chicago  River;  tliat  there  were 
4()  days  per  annum  during  those  19  years  when  the  water  stood 
so  deep,  that  it  would  give  a stream  15  inches  deep  running  from 
the  Des  Plaines  into  the  Chicago  River,  but  for  the  Clgden  Dam. 

Now,  it  is  no  sort  of  reply  to  this  testimony,  which  essentially 
corroborates  the  report  of  Col.  Long,  the  Report  of  (xraham  and 
Phillips,  the  Narrative  of  Lieut.  Hopson,  and  the  narratives  of 
Marciuette,  Joliet  and  Howard  to  say  that  at  the  other  extreme  of 
the  year  periods  varying  from  one  to  six  months  could  be  found 
Avhen  the  water  at  this  point  above  the  head  of  navigation  would 
lie  six  inches  deep  or  less. 


4 


11.  TllK  TWO  KXISTIN(J  DAMS  AT  MARSEII.LES  AND  .JOfJIOT  ARE  SlJli- 
JECT  TO  REMOVAIi  BY  THE  STATE  FOR  NAVIGATION  PURI’OSES.  THERE- 
FORE TtlE  NAVIGABILITY  OF  THE  RIVER  IS  TO  BE  DETERMINED  INDEPEND- 
ENT OF  THEIR  PRESENCE. 

The  only  dams  between  Chicago  and  St.  Louis,  njoon  which  any 
private  rights  are  asserted,  and  which  are  not  adequately  provided 
with  navigation  locks,  are  the  dam  at  Marseilles  and  Dam  No.  1 at 
Joliet. 


I. 

The  dam  at  Marseilles,  by  the  Act  of  March  9,  1867,  was  limited 
thus : 

‘‘Provided  that  this  Act  shall  not  be  so  held  or  construed  as 
to  prevent  the  State  from  taking  possession  of  said  dam,  or 
removing  it  at  any  time  for  improving  said  Illinois  Biver  for 
purposes  of  navigation,  etc.” 

2 Pr.  L.,  1867,  pp.  810-811. 

(This  was  amended  June  19,  1869  (4  Pr.  L.,  1869,  p.  498)  so  as 
to  provide  reasonable  compensation.) 

IT. 

The  Case  of  Dam  No.  1 at  Joliet. 

As  to  Dam  No.  1,  the  evidence  shows  that  it  was  begun  by  the 
Canal  Commissioners  in  1840  and  finished  in  1841. 

5 Gilm.,  553;  and  see 

Canal  History:  Canal  Rep.  1900,  p.  155. 

The  incidental  water  power  developed  thereby  has  been  the  sub- 
ject of  conveyances,  as  follows  : 


Canal  Trustees 
to 

Henderson  Howk 
and 

John  Preston. 


Lease  of  duly  17,  1855; 

20  years  from  July  17,  1856,  ends  July 
17,  1876;  ^ 

With  provision  for  conferring  a renewal 
for  term  of  years; 

For  same  rent  as  highest  and  best  bid- 
der otiers; 

(And  in  defaut  of  other  bid.  at  same 
rental  as  first  term), 

Which  would  end  July  17,  1896; 

With  provision  for  conferring  a second 
renewal  for  20  years  more — ^on  like 
terms — to  end  July  17,  1916. 

Canal  Commissioners 
to 

G.  W.  Hyde,  Assignee. 
Purported  renewal,  on  August  10, 1867 ; 

For  20  years  from  July  17,  1876. 

Canal  Commissioners 
to 

Economy  Light  and 
Power  Company, 

as  Assignee. 

Purported  renew^al,  on  October  3,  1896; 
For  20  years  from  July  17,  1896 ; 

By  Canal  Commissioners. 

(See  Transcript  of  Eecord,  pp.  5486-5198;  xVbstract,  pp. 
1675  to  1679,  inclusive.) 

The  Canal  Trustees  assumed  to  make  a lease  beginning  one 
year  in  fiitiiro,  for  twenty  years,  with  a floating  conditional  i^riv- 
ilege  of  renewal  for  twenty  more — making  forty— and  another 
conditional  privilege  of  renewal  for  twenty  more— making  sixty. 

The  lease  was  made  July  17,  1855,  by  the  Trustees,  for  the  term 
to  begin  July  17,  1856,  and  to  end  July  17,  1876. 

1.  The  lease  was  void  ah  initio.  It  was  a lease  to  begin  in 


4:55 


fiihiro.  T'lie  Canal  Trustees  had  no  power  to  make  leases  to  })egin 
in  fntnro. 

Rutz  V.  Kehn,  143  111.,  538,  567-8. 

2 Sngden  on  ‘‘Powers”  (3rd  Am.  Ed.,  from  7tli  London), 
310,  346. 

Cli.  18,  Sec.  10  (8th  London  Ed.,  p.  749),  and  cases  there 
cited. 

The  Kntz  case  was  one  of  the  statutory  trustee  to  lease  the  Ca- 
hokia  commons.  This  Court  applied  the  rule  of  the  common  law 
that  a trustee  of  a power  could  not  make  leases  to  being  in  futuro; 
and  that  the  statutory  trustee  was  strictly  limited  by  the  rule. 

The  second  period  of  twenty  years,  if  it  should  take  effect,  was 
to  begin  July  17,  1876,  and  end  July  17,  1896. 

The  third  period  of  twenty  years,  if  it  should  take  effect,  was  to 
begin  July  17,  1896,  and  end  July  37,  1916. 

The  title  of  the  Trustees  ended  by  reverter  to  the  State,  under 
Section  19  of  the  Act  of  1843,  upon  the  completion  of  the  canal 
and  payment  of  the  canal  debt,  without  any  deed. 

The  trust  was  formally  terminated  and  the  property  returned 
by  the  Trustees  to  the  State  in  1871. 

Canal  History,  Commissioners’  Eeport  of  1900,  p.  208. 

Transcript,  p.  6443;  Abst.,  p.  1909.) 

See  also  Act  of  April  22,  1871  (Laws  of  1871-2,  p.  215; 
Canal  Comp.,  p.  148),  entitled: 

“An  Act  to  settle  up  and  close  the  trust  of  the  Board 
of  Trustees  of  the  Illinois  and  Michigan  Canal.” 

The  State  resumed  possession  of  the  Canal  in  1871,  and  has 
exercised  full  control  thereof  ever  since. 

See  sundry  statutes  in  the  Canal  compilation  from  the 
Act  of  April  22,  1871,  last  cited,  onwards. 

2.  There  was  no  assignment  of  the  lease. 

3.  With  the  termination  of  the  trust,  the  powers  of  the  Canal 
Trustees  ceased. 

By  the  Act  of  March  7,  1872  (L.  of  1871-2,  p.  213;  Canal  Com- 
pilation, p.  152)  entitled:  “An  Act  relative  to  the  powers  and  du- 
ties of  the  Canal  Commissioners  relative  to  the  Illinois  and  Mich- 


igaii  Canal,  the  lock  and  dam  at  Henry,  and  the  improvement  of 
tlie  Little  Wabash  River. 

The  Legislature  provided  as  follows : 

^^Said  Commissioners  shall  have  power  to  lease  to  the  high- 
est and  best  bidder  any  water  power  and  lands  and  locks 
connected  therewith  belonging  to  the  State,  for  any  period  not 
longer  than  fifteen  years; 

^'Provided,  however,  before  any  lease  shall  he  made,  public 
notice  shall  be  given  of  such  lease  for  at  least  sixty  days  in 
some  newspaper  published  in  the  neighborhood.’’ 

In  1874  the  State  passed  the  Act  entitled:  ‘‘An  Act  to  revise 
the  law  in  relation  to  the  Illinois  and  Michigan  Canal  and  for  the 
improvement  of  the  Illinois  and  Little  Wabash  Rivers,”  approved 
March  27,  1874,  and  enforced  July  1,  1874. 

Rev.  St.  of  1874,  p.  188. 

This  statute,  with  amendments,  has  been  in  force  ever  since. 

As  originally  passed  in  1874,  it  contained  the  provision  for 
leasing  water  power  to  the  highest  and  best  bidder,  with  the  re- 
quirements of  thirty  days’  advertisement  in  a newspaper,  and  the 
limitation : 

“Ho  lease  shall  be  for  a period  exceeding  ten  years,  but  the 
Commissioners  may  provide  for  the  extension  of  any  lease 
from  time  to  time,  not  exceeding  ten  years  at  any  one  time, 
at  a rent  to  be  fixed  by  appraisal,  etc.  * * * j^ll  leases 

of  water  power  and  extensions  thereof  shall  be  subject  to  the 
right  of  the  Commissioners  to  resume  without  compensation 
to  the  lessee  the  use  of  any  such  water  power  for  the  purpose 
of  the  canal,  and  also  wholly  abandon  or  destroy  the  work, 
by  the  construction  of  which  the  water  privilege  shall  have 
been  created — ^whenever  in  the  opinion  of  the  Legislature  such 
work  shall  cease  to  be  advantageous  to  the  State.  ’ ’ 

This  provision  has  remained  part  of  the  statute  ever  since. 

In  1899,  by  an  amendment,  the  length  of  such  new  leases  was 
limited  to  a period  not  exceeding  twenty  years. 

(Act  of  April  21,  1899,  L.  of  1899,  p.  82;  Canal  Comp., 
pp.  173-4.) 

4.  The  act  of  the  Canal  Commissioners  on  August  10,  1876,  pur- 
porting to  make  a renewal  agreement  with  one  G.  W.  Hyde  for  a 
term,  or  reneival,  for  twenty  years  from  July  17,  1876,  was  in  vio- 
lation of  the  statute. 


5.  The  act  of  the  Canal  Commissioners  on  October  3,  189G,  pur- 
porting to  make  a renewal  of  the  lease  with  the  Economy  Light 
and  Power  Company  for  a term  of  twenty  years  from  July  17, 
1896,  was  in  violation  of  the  statute. 

6.  Both  purported  renewals  were  really  new  leases  and  were 
subject  to  the  power  of  the  State  to  resume. 

Act  of  1874,  R.  S.,  Ch.  19,  Sec.  8,  Cl.  6,  quoted  above. 

The  provision  for  a renewal  was  a floating  conditional  privilege 
by  the  Trustees,  and  they  ceased  to  exist  before  the  conditions 
were  complied  with.  There  was  no  privity  of  contract  for  renewal 
between  either  the  lessees  or  their  assignee  on  the  one  hand,  and 
the  Canal  Commissioners  on  the  other. 

An  inchoate  right  to  contract  with  an  agency  of  the  State  in 
the  future  is  not  itself  a contract  conferring  a vested  right  under 
the  constitution. 

Galveston,  etc.,  Uy.  Co.  v.  Texas,  170  U.  S.,  226. 

Bank  of  Commerce  v.  Tennessee,  163  U.  S.,  416. 

Pearsall  v.  Great  Northern  By.  Co.,  161  U.  S.,  646. 

The  courts  have  repeatedly  held  that  the  Legislature  may  repeal 
laws  authorizing  the  donation  of  such  privileges,  although  invest- 
ments  have  been  made  thereunder,  the  contract  not  having  been 
actually  carried  into  effect. 

City  of  Chester  v.  N.  C.  S W.  B.  R.  Co.,  182  111.,  382. 

Washingtonian  Home  v.  Chicago,  157  111.,  414. 

Aspinwall  v.  Daviess,  22  How.,  364. 

Wadsivorth  v.  Supervisors,  102  U.  S.,  534. 

Norton  v.  Brownsville,  129  IT.  S.,  479. 

Wade  V.  Walnut,  105  U.  S.,  1. 

Concord  v.  Portsmouth  Savings  Bank,  92  U.  S.,  625. 

Falconer  v.  Buffalo  S J amestoivn  R.  R.  Co.,  69  N.  Y.,  491. 

Covington  S Lexington  R.  R.  Co.  v.  Kenton  County  Court, 
12  B.  Mon.,  144.^ 

Upon  failure  to  secure  the  completed  donation  within  the  time 
allowed,  all  rights  of  the  grantee  to  hold  under  the  renewal  clause 
lapsed. 

Atchison  St.  Ry.  Co.  v.  Nave,  38  Kans.,  744;  17  Pacific, 
587  (1888). 

Wilmington  City  Ry.  Co.  v.  Wilmington  S B.  S.  Ry.  Co., 
46  Atk,  12  (Del.  1900). 


SL  Louis  V.  Western  Union  Telegraph  Co.,  14-8  U.  S.  92. 
iMinersville  Borough  v.  Schuylkill,  etc.,  lly.  Co.  (Pa.  1903), 
20r)  Pa.,  294;  54  Atl.  1050! 


Tlie  (4inal  Trustees  held  as  trustees  not  only  for  the  bond  hold- 
ers, but  also  for  the  State,  and  acted  in  tlie  exercise  of  a govern- 
mental power,  under  delegated  authority,  and  as  the  agency  of 
the  State.  They  had  no  implied  powers. 

Therefore  they  had  no  implied  power  to  grant  a right  to  obtain  a 
contract  in  future  after  the  completion  of  the  trust. 

Walla  Walla  v.  Walla  Walla  Water  Co.,  172  IT.  S.,  1. 

Rogers  Park  Water  Co.  v.  Fergus,  178  111.,  571;  Ibid  180 
IT.  S.,  624. 

People  ex  rel  v.  Siilnirhan  R.  R.  Co.,  178  111.,  594,  606-7. 

Chicago  General  Ry.  Co.  v.  Chicago  City  Ry.  Co.,  62  111., 
App.  502. 

Davis  & Farnum  Mfg.  Co.  v.  Los  Angeles,  189  U.  S.  207. 

Bienville  W.  S.  Co.  v.  Mobile,  186  U.  S.,  212. 

Wabash  R.  R.  Co.  v.  Defiance,  167  U.  S.,  88. 

LIunt  V.  Chicago  H.  £ D.  Ry.  Co.,  121  111.,  646. 


This  rule  was  applied  by  Judges  Grosscup  and  Je-nkins,  limit- 
ing the  grants  of  franchises  by  the  City  of  Chicago  to  Traction 
Companies  of  the  City  to  a period  of  twenty  years,  insofar  as  the 
streets  had  not  been  specifically  designated  and  work  done  there- 
under prior  to  the  re-incorporation  of  the  City  under  the  general 
incorporation  Act  which  limited  such  grants  to  twenty  years,  in 
the  year  1875. 

Govin  V.  City  of  Chicago,  132  Fed.  Pep.,  848  et  seq. 

In  Blair  v.  Chicago,  201  IT.  S.,  400,  473-4,  the  Supreme  Court 
recognized  the  correctness  of  the  decision  of  Judges  Grosscup  and 
Jenkins,  insofar  as  they  applied  this-  limitation  and  reversed  the 
decision  below  because  it  did  not  carry  this  limitation  far  enough. 

At  page  488-9  the  Supreme  Court  applied  the  same  limitation  to 
the  Lake  View  franchises. 

The  original  lease  to  Houck  and  Preston  gave,  at  most,  a pro- 
vision for  conferring  a conditional  privilege  of  renewal  to  be  ex- 
ercised by  the  Trustees  on  or  before  the  17th  of  July,  1876. 

7.  It  could  not  be  renewed  after  it  had  expired. 

The  original  lease  provided,  at  most,  for  the  renewal  to  be 


4:v.) 

grantod,  upon  wliicli  ienns  tlioreiii  iiainod  />//  Hut  'I'rus/ras,  in  (*a.sc‘ 
they  liad  not  therotofoi’e  terminated  tlieir  trust.  Tlieir  [)owers  of 
charging  the  })roperty  of  the  State  insofar  as  the  cliarge  liad  not 
hecome  tixed  prior  to  the  termination  of  the  trust,  ceased  with  the 
termination  of  the  trust. 

8.  They  could  not  and  did  not  impose  upon  tiie  Sovei*eign 
State  a contract  binding  upon  the  reversion  of  the  property,  after 
the  mortgage  had  been  paid  off,  the  trust  diseliarged  and  the  prop- 
erty returned  to  the  State. 

G.  W.  Hyde,  purporting  to  claim  as  assignee  of  Howk  and 
Preston,  needed,  and  obtained  a new  contract,  not  from  the  Trus- 
tees but  from  the  Canal  Commissioners  in  1876.  There  was  no 
contract  by  the  Canal  Commissioners  to  grant  a renewal.  As  a 
new  leasing  by  the  Canal  Commissioners,  their  action  in  1876  was 
in  violation  of  the  statute  of  March  27,  1874,  which  limited  such 
leases  to  ten  years;  and  which  required  a fresh  advertisement , and 
letting  to  the  highest  bidder. 

Hyde,  in  taking  the  new  lease  in  1876,  took  it  subject  to  the  pro- 
vision of  the  statute  of  1874  (Section  8,  Clause  6),  which  made: 

^‘All  leases  of  water  power  and  extensions  thereof  subject 
to  the  right  of  the  Commissioners  to  resume  without  compen- 
sation to  the  lessee  the  use  of  any  such  water  power  * * 

and  also  wholly  abandon  or  destroy  the  works  * * * when- 
ever in  the  opinion  of  the  Legislature  such  work  shall  cease 
to  be  advantageous  to  the  state.” 

The  Economy  Light  & Power  Company  in  1896  took  nothing  hj 
the  renewal  agreement  made  October  8,  1896,  purporting  to  renew 
the  former  lease.  It  claimed  through  Hyde,  who,  as  we  have  seen 
had  taken  nothing.  The  lease  in  1876  to  Hyde  had  itself  already 
expired,  if  it  ever  had  any  validity. 

The  power  of  the  Commissioners  to  make  a renewal,  if  any  such 
power  existed,  could  not  be  exercised  after  the  thing  to  be  renewed 
had  expired. 

Rutz  S Kehn,  143  111.,  558,  567-8. 

The  new  lease,  styled  ”a  renewab”  made  to  the  Economy  Light 
& Power  Company,  October  3,  1896,  violated  tlie  Act  of  1874  as 
amended  June  19,  1891,  which  style  restricted  such  leases  to  ten 
years,  and  which  also  required  such  fresh  advertisement,  and 


Ui) 


wliicli  also  2)rovidecl  that  sucli  leases  laiglit  be  terminated  without 
coiyiperisatioij,  and  the  dam,  by  whicli  the  power  was  produced 
miglit  be  destroyed — whenever  in  the  opinion  of  the  Legislature 
tlie  work  should  cease  to  be  advantageous  to  the  State. 

l>ut  it  is  urged  on  behalf  of  the  Defendant  that  these  leases  had 
I'eceived  some  judicial  ratification  by  virtue  of  the  ‘‘consent  de- 
cree” between  the  Canal  Commissioners  and  the  Sanitary  Dis- 
trict of  Chicago. 

(Transcript,  pp.  5499-5511;  Abst.,  ]).  1680.) 

But  that  decree  was  a “consent  decree.” 

(Transcript,  p.  5486;  Abst.,  p.  1676.) 

A “consent  decree”  is  merely  a new  form  of  contract. 

It  does  not  appear  that  The  Economy  Light  & Power  Company 
was  a party  to  the  case  in  which  “consent  decree”  was  reudered. 
That  company  could  take  nothing  by  a “consent  decree”  in  a case 
to  which  it  was  not  a party. 

The  Canal  Connnissioners  could  not  by  means  of  the  “consent 
decree”  confer  upon  the  Defendant  a right  to  a water  power  lease 
which  they  could  not  confer  by  the  lease  itself. 

III. 

[ THE  POLICY  OF  THE  STATE  OF  ILLINOIS 

IN  KESPECT  TO 

THE  NAVIGABILITY  OF  THE  DES  PLAINES  RIVER  AS  EVIDENCED  BY 

LEGISLATION. 

1839.  By  Act  of  Feb.  28,  1839  (L.  1839,  p.  208)— the  Des  Plaines 
River  was  declared  a navigable  stream; — “From  the  point  where 
it  most  nearly  connects  itself  with  the  Illinois  and  Michigan  Canal, 
to  its  source,  within  the  boundaries  of  this  State.” 

The  Act  provides  that  the  river  between  these  limits  “is  here- 
by declared  a navigable  stream  and  shall  be  deemed  and  held  a 
public  highway,  and  shall  be  and  remain  free,  open  and  unob- 
structed for  the  passage  of  all  boats  and  water-crafts  of  every 
description.  ’ ’ 

1839.  It  was  the  same  Legislature  that  two  days  earlier  passed 


441 


the  Aet  of  Feb.  2(),  1839  (L.  1839,  f).  177;  Canal  Comp.,  p.  59)  : ^‘To 
Amend  tlie  Several  Laws  in  Keiations  to  the  Illinois  and  Michigan 
Canal,”  (Clause  11  of  Section  2),  and  this  Act  provided  that 
‘‘Lands  situated  upon  streams  wliicli  have  been  meandered  by  the 
Surveys  of  Public  Lands  by  the  United  States,  shall  be  considered 
bounded  by  the  lines  of  those  Surveys  and  not  by  the  streams.” 

The  streams  to  which  this  applied  were,  the  Illinois,  Kankakee, 
and  the  l)es  Plaines.  As  to  the  Chicago  Kiver,  the  proof  is  not 
clear.  By  it  the  Legislature,  which  in  the  same  breath  declared 
the  Des  Plaines  navigable,  itself  drew  the  line  bounding  future 
sales  of  lands  thereon. 

At  the  time  of  the  passage  of  this  Act  of  Feb.  28,  1839,  the  Up- 
per Basin  and  Dam  No.  1 had  not  been  built.  The  recommendation 
of  Engineer  Gooding,  made  Dec.  9,  1836,  to  merge  the  canal  into 
the  river  at  its  mouth  (See  History  of  Canal,  Eeport  of  1900,  p. 
124)  had  been  referred  to  the  Committees  of  the  two  Houses  of 
the  Legislature;  and  September  15,  1837,  the  Senate  Committee 
had  reported  against  it,  at  the  same  time  stating  that  the  House 
Committee  reported  in  favor  of  it. 

Mr.  Gooding’s  Report  of  Dec.  10,  1838,  states  (Canal  History, 
Report  of  1900,  p.  155),  in  describing  the  proposed  basin: 

“Lock  No.  4 brings  the  canal  to  the  level  formed  by  the  pool 
of  Dam  No.  1.  A short  distance  below  said  lock,  the  line  runs 
into  the  channel  of  the  Des  Plaines  River,  which  ivill  here  he 
turned  to  the  rights  and  the  whole  of  the  water  forced  into 
the  channel  upon  the  west  side  of  Normand’s  Island.  * * * 

The  rock  excavations  in  the  bed  of  the  river  from  the  point 
where  the  canal  enters  it  to  the  upper  end  of  said  island  aver- 
ages about  21  ft.  in  depth,  but  when  the  river  is  turned,  the 
excavation  ivill  he  attended  with  no  particular  difflculty. 

The  excavation  continues  across  the  island,  running  out  at 
the  lower  end  of  it  where  the  towing  path  crosses  the  river, 
and  is  thence  continued  down  the  right  bank  to  the  guard  lock 

at  Dam  No.  2,  where  the  Independent  Canal  again  commences. 
# * * 

Both  dams  ivill  he  made  of  good  cut  stone  masonry,  laid  in 
hydraulic  cement.” 

Dam  No.  1 and  Dam  No.  2 which  were  not  built  in  December, 
1838,  were  not  built  until  after  this  statute  of  Feb.  28,  1839,  had 
been  passed.  (Mr.  Gooding  speaks  (Canal  Rep.  1900,  pp.  204-6)  in 
his  report  dated  Dec.  1,  1842,  of  the  construction  “of  the  perfectly 


442 


watcM-  tight  (lam  at  Juliet,” — whicli  a])i)areiitly  refers  to  Dam  No. 
1-) 

-It  ai)i)ears  by  tlie  statement  of  facts  in  Caudl  Trustees  v.  Haven, 
o (lilman  bbJ,  that  ‘D4ie  stone  for  tlie  said  dam  on  section  nine 
wliich  is  a cement  and  cut  stone  dam  was  commenced  being  quar- 
ried the  same  season  and  the  dam  was  commenced  the  following 
season  (1841)  in  the  spring  and  finished  in  the  fall  of  1841.” 
Cooley  Ex.  2 and  the  other  maps  as  well,  show  that  Dam  No.  1 
was  on  Section  9.  The  development  of  the  basin  and  construction 
of  the  canal  into  the  same  came  later.  The  work  was  suspended 
and  never  resumed  until  the  Canal  Trustees  took  it  up  in  1845  and 
finished  it  in  1848. 

As  subsecpiently  built  this  basin  proved  the  point  of  nearest 
connection  between  the  river  and  the  canal.  At  the  time  the  stat- 
ute was  passed,  the  location  had  not  been  finally  determined,  and 
the  intent  of  the  statute  was  that  the  river  from  whatever  point 
should  prove  its  final  union  with  the  canal  northward  to  its  source, 
should  be  a navigable  stream  connecting  with  the  canal  at  that 
point  to  the  union ; and  a free  public  highway.  That  is,  the  point 
of  union  was  still  an  unsettled  point  and  the  whole  of  the  river 
was  impressed  so  far  as  the  Legislature  could  impress  it,  with  the 
continued  public  use  of  navigability. 

That  the  work  of  the  Trustees  began  in  1845  is  shown  by  the 
Canal  History  Report  of  1900,  pp.  208-9.  The  supplemental  Act 
to  induce  the  Trustees  to  act  was  passed  March  1,  1845,  and  the 
first  board  of  Canal  Trustees  was  chosen  by  the  bond  holders  May 
27,  1845;  and  the  first  State  Trustee  was  appointed  June  10,  1845. 
Thereafter,  the  work  began  by  the  choice  of  IVilliam  Gooding  as 
chief  engineer  July  23,  1845.  (Ibid.,  p.  208.) 

It  was  contended  contra  that  this  statute  spoke  only  of  the  river 
from  Dam  No.  1 northward.  We  have  seen  that  Dam  No.  1 was 
not  then  in  existence.  The  statute  spoke  in  futuro,  from  where- 
ever  the  two  streams  would  unite, — subjecting  the  whole  river  to 
the  continued  public  use  of  navigability. 

It  was  declared  contra  that  this  statute  by  implication  declared 
the  river  free  from  the  point  of  junction  down  to  its  mouth  un- 
navigable  by  implication  ; and  6 California  443,  and  21  Pacific  Re- 


-1 4»> 

])orl(M-  wcM’o  cited  to  tlu'  (dTcM't  tliat  wli(‘i-(^  tli(i  statute;  had  henui 
passed  (lec'lariiig-  a river  Tiaviga])le  from  its  mouth  upward  to- 
wards its  source  to  a certain  point,  that  that  statute  })y  irnplicatioii 
is  a de(;laration  that  the  remainder  of  tiie  river  above  that  f)oint  is 
not  navigable. 

It  was  urged  below  and  apparently  with  success  that  the  Court 
ought  to  reverse  the  rule  of  the  California  cases,  and  say  that  from 
that  point  down  to  its  mouth  the  river  is  by  implication  not  navig- 
able. 

The  California  cases  went  upon  the  simple  and  obvious  fact  that 
the  river  grows  smaller  and  shaHower  and  more  difficult  as  you 
go  upward  to  the  source. 

The  converse  is  equally  true : that  the  river  grows  larger,  deeper 
and  generally  better  adapted  for  navigation  as  it  goes  downward 
toward  its  mouth, — and  so  we  say : 

1.  That  the  point  of  junction  mentioned  in  the  statute  was  a 
point  to  be  fixed  in  futuro  and  that  the  statute  covered  the  whole 
river,  as  the  point  of  junction  might  yet  be  fixed  at  the  mouth,  as 
Engineer  Gooding  had  recommended. 

2.  That  if  the  river  from  its  source  down  to  the  point  of  union, 
either  in  Joliet  or  in  Lake  Joliet,  or  at  the  mouth  of  the  DuPage, 
or  at  the  mouth  of  the  Kankakee,  was  fixed  as  the  point  of  union, — 
that  from  that  point  onward  the  river  had  more  water  and  was 
more  navigable  than  it  was  above,  and  the  declaration  that  its 
slender  upper  portions  were  navigable  by  law,  a fortiori,  are  de- 
clared its  larger  and  fuller  portions  navigable. 

3.  That  it  is  a barbarism  to  suggest  that  the  Des  Plaines  Kiver 
is  navigable  down  to  the  present  point  of  union  with  the  Illinois 
and  Michigan  Canal  in  Joliet;  and  that  the  Illinois  River  is  a 
navigable  stream  up  to  the  Forks  of  the  Des  Plaines  and  Kanka- 
kee; and  that  the  15  miles  in  between  are  not  also  navigable. 

We  have  seen  that  in  the  laws  of  1822  the  Sangamon  River  was 
declared  navigable,  and  that  in  Clark  v.  Lake,  1 Scammon  229,  the 
Court  enforced  the  Act  and  referred  to  the  Act  itself,  without  other 
evidence,  as  establishing  the  navigability  of  the  stream. 

1845.  March  3 the  Legislature  passed  an  Act,  ^‘To  authorize 
Stephen  Forbes  to  construct  a dam  across  the  Des  Plaines  River 


in  Cook  County.”  This  is  sometimes  called  the  Kiverside  Dam, 
sometimes  called  the  Hoffman  Dam,  and  sometimes  called  the 
Forhes  Dam.  It  tixes  its  location  on  the  section  line  at  Eiverside. 
This  dam  is  a short  distance  above  the  point  marked  ‘‘Head  of 
Navigation”  in  the  Field  Notes  of  United  States  Survey  of  1821. 
The  Act  has  annexed  the  proviso  “That  this  Act  shall  not  operate 
to  i^revent  the  State  from  improving  said  river  by  dams,  or  from 
using  the  water  in  said  river  for  the  Illinois  and  Michigan  Canal, 
at  any  time  hereafter,  or  for  any  other  purpose/^ 

“Any  other  purpose”  includes  use  for  navigation,  and  plainly 
the  intention  was  to  protect  the  right  of  navigation. 

1867.  March  9,  the  State  enacted  the  statute  entitled:  “An  Act 
to  Incorporate  the  Marseilles  Land  and  Water  Power  Company,” 
which  authorized  the  building  of  a water  power  dam  at  the  Grand 
Eapids  of  the  Illinois  at  Marseilles. 

The  Act  contained  the  following  proviso : ‘ ‘ That  this  Act  shall 
not  be  so  held  or  construed  as  to  prevent  the  State  from  taking 
possession  of  said  dam  or  removing  it  at  any  time,  for  improving 
said  Illinois  River  for  purposes  of  navigation^’ 

1869.  March  27,  an  Amendment  to  this  Act  was  passed,  pro- 
viding: “When  the  State  shall  take  possession  of  said  Company’s 
dam  for  navigation  purposes,  the  State  shall  cause  a reasonable 
compensation  to  be  paid  to  said  Land  & Water  Power  Company.” 

This  Act  expressly  protected  and  reserved  the  right  of  the  State 
to  use  the  river  for  navigation. 

The  dam,  however,  was  erected  and  has  since  been  strengthened 
and  renewed ; and  while  the  State  protects  the  right  of  navigation, 
the  fact  of  navigation  has  been  suspended,  as  to  boats  coming 
from  the  one  side  of  that  dam  to  the  other,  ever  since, — except  as 
boats  have  been  carried  around  to  the  dam,  or  taken  past  it  in  the 
Illinois  and  Michigan  Canal. 

So,  Dam  No.  1,  erected  in  1841  and  subjected  to  lease*  in  1855. 
is  built  by  the  State,  itself,  and  is  State  property,  and  is  a work 
erected  in  aid  of  navigation,  and  for  incidental  water  power;  but 
the  navigation  which  it  aided  was  turned  from  the  river  at  that 
point,  to  go  down  the  canal,  past  the  two  dams,  and  then  into  the 


Illinois  River  at  LaSalle.  The  invalidity  and  terniinahility  of  the 
lease  is  elsewhere  shown. 

And  while  the  right  of  navigation  was  expressly  reserved  as  to 
the  private  dam,  and  is  inherently  reserved  as  to  the  public  dam, — 
the  presence  of  these  two  dams  in  the  river  for  the  last  forty  years 
has  prevented  through  navigation  in  fact,  from  extending  from 
below  one  dam  to  the  point  above  the  other  dam, — and  vice  versa ; 
and  a generation  of  men  has  grown  up  and  grown  past  middle  life, 
who  have  never  seen  a boat  go  through  upon  the  river  from  Chi- 
cago to  St.  Louis,  or  from  Peoria  to  Lockport. 

And  out  of  this  absence  of  through  travel  by  river  in  fact  has 
grown  a very  general  impresison  that  no  such  through  travel  ever 
occurred,  and  that  it  was  never  possible  for  it  to  occur. 

All  of  which  impression  is  contrary  to  fact. 

1861.  At  the  Legislative  Session  begun  January  7,  1861,  the 
Legislature  passed  the  following  Joint  Resolution: 

Joint  Resolution  in  Relation  to  the  Improvement  of  Navi- 
gation OF  THE  Illinois  River. 

Resolved  hy  the  Senate,  the  House  of  Representatives  Con- 
curring Herein,  That  the  board  of  trustees  of  the  Illinois  and 
Michigan  Canal  be  and  are  hereby  authorized  and  instructed 
to  cause  prompt  and  thorough  surveys,  examination  and  esti- 
mates to  be  made  of  the  Illinois  River,  and  of  the  Illinois  and 
Michigan  Canal,  and  also  of  portions  of  the  Des  Plaines  and 
Chicago  rivers,  and  of  the  portage  hehveen  said  rivers,  for 
the  purpose  of  accurately  ascertaining  the  comparative  value, 
cost,  efficiency,  benefits  and  advantages,  direct,  prospective 
and  incidental,  of  the  different  methods  proposed  or  desirable 
for  improving  the  navigation  of  the  Illinois  River,  by  dredging 
or  excavation  of  the  channel  and  wdng  dams,  or  by  supplying 
water  from  Lake  Michigan,  through  the  enlargement  and  deep- 
ening of  the  Illinois  and  Michigan  Canal,  or  otherwise,  or  by 
opening  a channel  from  Lake  Michigan,  hy  way  of  the  south 
branch  of  the  Chicago  river  and  Mud  lake  to  the  Des  Plaines 
river,  and  doivn  said  canal  to  a point  that  ivill  secure  a free, 
floiuing,  ample  and  never-failing  supply  of  water,  sufficient 
for  the  navigation  of  the  Illinois  river  at  all  seasons  and  times, 
when  not  obstructed  by  ice.  Such  surveys,  examinations  and 
estimates  to  include  a plan  of  enlargement  of  the  Illinois  and 
Michigan  Canal,  sufficient  for  the  introduction  and  use  of 
stern-wheel  river  steamers  and  propellers  upon  it,  and  also 
of  side-wheel  river  steamers,  and  to  include  also  an  estimate 
for  the  channel  hereinbefore  mentioned,  of  sufficient  size  to 


admit  of  fall  and  free  steamboat  navigation  from  tlie  Illinois 
river  to  (diieago  and  Lake  Miehignn,  as  well  as  a size  suffi- 
eient  for  supplying  water  for  all  of  the  deficiencies  of  naviga- 
tion in  the  llilnois  river,  at  all  seasons.  And  the  said  trustees 
are  hereby  antliorized  to  ernx)loy  efficient  and  competent  en- 
gineers of  high  character,  to  make  such  surveys,  examinations 
and  estimates,  and  to  avail  themselves,  in  their  labors,  of  all 
reliable  surveys  and  data  heretofore  made  and  obtained  of  the 
said  Illinois  river  and  Illinois  and  Michigan  Canal,  and  to  re- 
port the  result  of  all  such  examinations  and  surveys  to  the 
Governor  of  the  State,  as  soon  as  the  same  shall  be  completed, 
and  to  furnish  ample  abstracts  thereof  to  the  newspapers  of 
the  State  for  publication,  so  far  as  may  be  desired  by  them. 
And  the  said  board  of  trustees  are  hereby  authorized  to  pay 
the  necessary  expenses  of  said  surveys,  estimates  and  exam- 
inations out  of  any  funds  that  may  be  received  by  them  from 
the  earnings  of  the  Illinois  and  Michigan  Canal:  Provided, 
that  the  expenses  thereof  shall  not  exceed  the  sum  of  six 
thousand  dollars : Provided,  that  no  payment  shall  be  made 
by  the  said  trustees,  for  or  on  account  of  any  liability  hereto- 
fore incurred  or  moneys  heretofore  advanced  for  surveys, 
XDlats,  or  otherwise,  exceeding  twelve  hundred  dollars.  (Pub. 
Laws  of  Ilk,  1861,  pp.  277-8). 

1865.  Feb.  16,  the  Legislature  passed  the  statute  authorizing 
the  City  of  Chicago  to  make  the  Deep  Cut,  of  which  the  material 
portions  are  as  follows : 

Act  to  Provide  for  the  Completion  of  the  Illinois  and 
Michigan  Canal,  Upon  the  Plan  Adopted  by  the  State 
IN  1836.  (Appro^ted  February  16,  1865,  in  Force  April 
16,  1865.) 

(Preamble.)  Whereas,  it  has  been  represented  that  the 
City  of  Chicago,  in  order  to  purify  or  cleanse  Chicago  river, 
by  drawing  a sufficient  cpiantity  of  water  from  Lake  Michigan, 
directly  through  it,  and  through  the  summit  division  of  the 
Illinois  and  Michigan  Canal,  would  advance  a sufficient  amount 
of  funds  to  accomplish  this  desirable  object;  and, 

lAliereas,  the  original  ]3lan  of  the  said  canal  was  to  cut 
down  the  summit  so  as  to  draw  a supply  of  water  for  naviga- 
tion directly  from  Lake  Michigan,  which  plan  was  abandoned 
for  the  time  being,  after  a large  part  of  the  work  had  been 
executed,  only  in  consequence  of  the  inability  of  the  State  to 
]irocure  funds  for  its  further  prosecution;  and 

Whereas,  under  the  law  creating  the  trust  the  plan  of  the 
summit  division  of  the  canal  was  changed,  the  level  being 
raised  so  as  to  require  the  principal  supply  of  water  to  be  ob- 
tained through  the  Calumet  feeder,  subject  to  serious  contin- 


447 


goiu'ies,  and  hy  piini[)ing  onto  ilie  snnnnit  with  the  liydi-aiilic 
works  at  I>ridgeport ; now,  tliererore, 

(Summit  Division  to  be  Oompueted.)  Sootion  1.  I>o  it  en- 
aotod  by  tlio  People  of  the  State  of  Illinois,  represented  in  the 
(lenerai  Assembly:  That  to  secure  the  completion  of  the  sum- 
mit division  of  the  Illinois  and  Michigan  Canal,  upon  the  orig- 
inal ‘deep  cut”  plan,  with  such  modifications  and  changes  of 
line,  if  necessary,  as  will  most  effectually  secure  the  thorough 
cleansing  or  purification  of  the  Chicago  river,  and  facilitate 
the  execution  of  the  work,  the  City  of  Chicago  through  its  con- 
stituted authorities,  may  at  once  enter  into  an  arrangement 
with  the  board  of  trustees  of  said  canal,  with  a view  to  the 
speedy  accomplishment  of  the  work.  * * * 

(Amount  Expended  to  be  Lien — Proviso.)  Section  4.  The 
amount  expended  by  the  City  of  Chicago  in  deepening  the  sum- 
mit division  of  the  canal,  according  to  the  plan  adopted  by  the 
Canal  Commissioners  in  1836,  shall  be  a vested  lien  upon  the 
Illinois  and  Michigan  Canal  and  its  revenues,  after  the  pay- 
ment of  the  present  canal  debt;  and  the  net  revenues  of  the 
canal  shall  all,  thereafter,  be  applied  to  the  payment  of  the 
principal  and  interest  of  the  same  expended  in  accomplishing 
the  object  of  this  Act,  until  the  whole  amount  is  reimbursed  to 
the  city:  Provided,  the  cost  shall  not  exceed  two  and  a half 
millions  of  dollars. 

(State  May  Eeeund.)  Section  5.  The  State  of  Illinois  may 
at  any  time  relieve  this  lien  upon  the  canal  and  revenues,  by 
refunding  to  the  City  of  Chicago  the  amount  expended  in  mak- 
ing the  contemplated  improvement  and  the  interest  thereon. 
(L.  1865,  p.  83: — Canal  Laws,  pp.  135-136.) 

1867.  Feb.  28,  the  Legislature  ]iassed  the  Elver  Improvement 
Act,  which  among  other  things  provided  as  follows : 

An  Act  for  Canae  and  Eiver  Improvements.  (Approved  and 
in  force  February  28,  1867.)  ^ 

(May  Change  Canae.)  Section  7.  Said  Canal  Commis- 
sioners are  hereby  authorized  and  empowered  to  make  such 
changes  in  tbe  location  of  the  present  canal  or  adopting  a river 
improvement  instead  of  the  canal,  hetwee^i  Chicago  and.  La 
Salle,  as  may  he  deemed  expedient.  (L.  1867,  p.  81;  Canal 
Laws,  pp.  138-139.) 

This  Act  by  Section  10  authorized  the  construction  of  locks  and 
dams  in  the  Illinois  Eiver,  between  LaSalle  and  Peoria.  Under 
this  Act  the  dam  and  lock  at  Henry  were  built,  for  the  use  of  which 
(by  Act  of  March  7,  1872,  Canal  Comp.  p.  152;  L.  1871-2,  p.  213) 
the  Canal  Commissioners  were  authorized  to  charge  a toll. 

1871.  October  20,  the  Legislature  passed  The  Act  to  Eelieve  the 


448 


City  of  Cliicago,  l)y  taking  over  the  Dee])  Cut  as  State  property 
and  i-eiin})ursing  to  the  City  the  cost  of  making  the  Deep  Cut, — 
the  material  portions  of  whicli  are  as  follows: 

An  Act  to  Relieve  the  Lien  of  the  City  of  Chicago  Upon 
THE  IlIUNOIS  and  MICHIGAN  CaNAL  AND  REVENUES  BY  RE- 
FUNDING TO  Said  City  the  Amount  Expended  by  it  in 
IMaking  THE  Improvement  Contemplated  by  ^‘An  Act  to 
Provide  for  the  Completion  of  the  Illinois  and  Mich- 
igan Canal  Upon  the  Plan  Adopted  by  the  State  in 
1836/’  Approved  February  16th,  1865,  Together  With 
THE  Interest  Thereon  as  Authorized  by  Section  Five  of 
Said  Act  and  to  Provide  for  Issuing  Bonds  Therefor. 
(Approved  and  in  Force  October  20,  1871.) 

(Preamble.)  Whereas,  the  City  of  Chicago  has  expended 
a large  amount  of  money,  to-wit:  the  sum  of  two  and  a half 
millions  of  dollars,  to  secure  the  completion  of  the  summit 
division  of  the  Illinois  and  Michigan  Canal,  under  and  pur- 
suant to  the  provisions  of  said  Acts  so  approved  February  six- 
teenth, A.  I).  1865,  and  Acts  Supplementary  thereto;  and, 
whereas,  the  said  city  has  a vested  lien  upon  the  said  canal 
with  its  revenues,  subject  to  any  canal  debt  existing  at  the 
time  of  the  passage  of  said  Acts;  and,  whereas,  said  then  ex- 
isting debt  due  by  the  State  has  been  fully  paid  and  cancelled; 
and,  whereas,  the  canal  trustees  have  delivered  to  the  State  of 
Illinois  possession  and  control  of  said  canal ; and,  whereas, 
it  is  provided  by  section  five  of  said  Act  as  follows:  ^^The 
State  of  Illinois  may  at  any  time  relieve  this  lien  upon  the 
canal  and  revenues  by  refunding  to  the  City  of  Chicago  the 
amount  expended  in  making  the  contemplated  improvement 
and  the  interest  thereon;”  now,  therefore, 

(Appropriation — Bonds  to  be  Issued — Fmergency.)  Sec- 
tion 1.  Be  it  Enacted  hy  the  People  of  the  State  of  IllinoiSy 
Bepresented  in  the  General  Assembly:  That  the  sum  of  two 
million,  nine  hundred  and  fifty-five  thousand,  three  hundred 
and  forty  dollars,  with  interest  thereon  until  paid,  be  and  the 
same  is  hereby  appropriated  for  the  purpose  of  relieving  the 
lien  as  aforesaid,  being  the  principal  expended  and  the  in- 
terest thereon,  which  said  sum  is  hereby  refunded  to  said  city ; 
and  when  paid  said  city  shall  execute  and  deliver  to  the  State 
of  Illinois  a proper  release  of  said  lien  to  the  satisfaction  of 
the  Governor.  * * * 

M^hereas,  by  reason  of  a great  conflagration  in  the  City  of 
Cliicago  the  public  buildings,  bridges  and  other  public  improve- 
ments have  been  totally  destroyed  and  the  business  of  the 
courts  is  suspended,  whereby  an  emergency  exists  as  a reason 
why  this  Act  shall  take  effect  before  the  first  day  of  July  next; 
therefore. 


r>K  \t  KiTirriiKiR  !^]na(''I'mi),  l^liai  lliis  A('t  shall  lake*  (ifT(H*i  and 
he  in  forc'e  from  nnd  artcM*  its  passagf'.  ( L.  1H71,  p.  17t);  (kuial 
Laws,  pp.  149- 17)0.) 


1879.  At  the  Scission  of  the  Legislature  ('onvened  danuarv  8, 
1879,  the  Legislature  passed  the  doint  Hesolution  relative  to  the 
Illinois  and  Miehigan  Canal,  x)roposing  the  cession  of  tlie  Canal  to 
the  Federal  Government.  (Laws  of  111.,  1879,  pp.  321-322.) 

1881.  The  Legislature  at  the  Session  convened  January  5,  1881, 
])assed  the  following  important  resolution,  concerning  the  uses  of 
the  Des  Plaines  River : 

^‘Concerning  Chicago  Sewage  in  Illinois  and  AIichigan 
Canal. 

Whereas,  the  State  of  Illinois,  in  general  assembly,  did,  on 
the  sixteenth  day  of  February,  1865,  grant  and  authorize  the 
City  of  Chicago,  in  the  State  of  Illinois,  to  deepen  the  Illinois 
and  AIichigan  Canal  for  the  purpose  of,  and  with  the  intent  to 
better  the  system  of  sewerage  of  the  said  City  of  Chicago 
by  permitting  a free  flow  of  water  from  Lake  AIichigan 
through  the  Chicago  river  and  said  canal  to  the  Des  Plaines 
and  Illinois  Rivers;  and  the  City  of  Chicago  did  perfect  said 
improvement  in  conformity  with  said  permission;  and 
Whereas,  the  great  fire  in  the  said  City  of  Chicago  on  the 
eighth  and  ninth  days  of  October,  A.  D.  1871,  did  so  greatly 
damage  the  assessable  jiroiierty  of  a very  large  number  of  its 
citizens  and  tax])ayers,  and  the  Peo])le  of  the  State  of  Illinois 
did,  by  its  general  assembly,  refund  to  the  said  City  of  Clii- 
cago  the  amonnt  of  the  cost  of  dee])ening  the  Illinois  and  Alich- 
igan  Canal,  said  sum  refunded  being  in  gross  two  millions, 
nine  hundred  and  fifty-five  thousand,  three  linndred  and  forty 
dollars;  and 

Whereas,  the  deeiiening  of  the  canal  as  aforesaid  has  ]>roved 
to  be  totally  inadeejuate  for  the  purposes  intended,  and  the 
large  amount  of  sewage  of  the  Chty  of  Chicago  being  far 
greater  than  the  ca])acity  of  the  (*anal  and  the  water  now  jiass- 
ing  through  it  to  deodorize  and  render  inocnoiis;  and 

Whereas,  the  foulness  of  the  water  annually  causes  the 
death  of  millions  of  fish  in  the  Des  Plaines  and  Illinois  rivers, 
that  float  to  the  shores  and  decay;  and 

Whereas,  said  sewage,  in  an  entirely  nndecomposed  and 
]mtrid  mass,  is  carried  by  the  current  of  the  canal  into  the 
Des  Plaines  river,  and  thence  into  the  Illinois  river,  and  in 
its  foulest  conditions  is  thus  transported  to  and  below  the 
City  of  Peoria,  in  said  state,  rendering  the  air,  at  all  })oints 
along  its  passage,  so  impure  and  foul  as  to  be  exceedingly 
offensive,  and  taking  with  it  germs  of  disease  of  all  kinds 
prevalent  in  the  City  of  Chicago,  and  thus  spreading  them 


hroadc'ast  tlii'ougli  the  entii-e  Des  Plaines  and  Illinois  river 
valleys,  eansing'  tliei'eby  iniu'h  illness  as  well  as  poisoning  of 
the  blood,  and  debilitating  the  systems  of  20(3,000  }jeoi)le;  and 

WiiKp.EAS,  the  earefnl  investigation  leads  our  [)eople  to  fear 
that  an  e})ideinie  may  spread  over  said  section  of  the  State 
of  Illinois  from  the  causes  above  stated;  and 

Whereas,  in  addition  to  the  above  distress,  there  has  been 
a great  loss  of  pro])erty,  business  industries,  and  to  the  com- 
munities in  said  region,  by  reason  of  the  causes  lierein  men- 
tioned ; and 

Whereas,  prior  to  the  deepening  of  said  Illinois  and  Mich- 
igan (3anal,  the  irater  necessarij  for  all  purposes  of  navigat- 
ing said  canal  and  propelling  of  machinery  was  obtained  from 
the  Des  Plaines  river  and  the  Calumet  feeder,  through  Lane’s 
Lake;  and 

AVhereas,  the  bed  of  the  Des  Plaines  river,  at  the  Summit 
and  thence  westward  along  the  line  of  and  adjacent  to  the 
canal,  is,  at  a low  state  of  water,  eight  (8)  feet  above  the  sur- 
face level  of  the  canal,  and  ivill  average  a supply  of  ivater 
sufficient  for  all  canal  and  power  purposes  during  the  seasons 
of  navigation; 

AVhereas,  the  supplying  of  the  canal  from  these  sources 
will  so  dilute  and  weaken  the  sewage  of  the  city  of  Chicago, 
as  to  greatly  relieve  it  of  its  foulness  and  stench,  to  the  great 
delight,  relief  and  health  of  the  people  near  to  and  bordering 
upon  the  line  of  the  canal,  the  Des  Plaines  and  Illinois  rivers ; 
therefore,  be  it 

Resolved  by  the  Senate,  the  House  of  Representatives 
Concurring  Herein,  That  the  Board  of  Canal  Commissioners 
of  the  Illinois  and  Michigan  Canal,  be,  and  they  are  hereby 
directed  to  cause  sluice-ways  of  sufficient  capacity,  with  the 
proper  guard-gates,  to  he  opened  from  the  Des  Plaimes  River 
to  the  canal,  at  or  near  the  Summit,  in  Cook  County,  and  at 
or  near  Lemont,  in  Cook  County,  and  also  to  construct  a dam 
across  the  former  Calumet  feeder  at  such  suitable  point  as 
will  cause  the  waters  from  Lane’s  Lake  to  flow  into  the  canal; 

That  said  Canal  Commissioners  shall  immediately  commence, 
construct  and  improve  said  sluices  and  feeders  in  the  order 
named,  and  pay  for  the  same  out  of  any  moneys  in  their 
hands  or  control  as  Canal  Commissioners,  resulting  from  the 
earnings  of  the  canal. 

The  amount  to  be  expended  as  above  designated  in  the  pros- 
ecution of  said  improvement  shall  not,  however,  exceed  the 
sum  of  ten  thousand  dollars: 

Provided,  that  the  Canal  Commissioners  shall  first  confer 
with  the  mayor  or  other  proper  authorities  of  the  City  of  Chi- 
cago, and  if  said  city  shall  proceed  without  delay  to  cause  a 
flow  into  the  canal  from  the  Chicago  river  sufficient  to  dilute 


451 


and  piirily  llu'  waters,  and  ilins  r(‘ni(‘dy  ilie  (wils  eornplained 
of,  said  llovv^  to  bo  not  l(\ss  than  (50, 000  (nil)i(‘  f(‘(‘t  })(‘r  rninnto, 
inelnding  the  ordinary  tiovv  into  the  eanal  fi*oni  the  (diieago 
river,  or  so  nineli  thereof  as  in  tlieir  judgment  said  eanal  can 
earry,  and  if  this  sliall  be  aceoinplished  by  the  first  day  of 
September,  188.1,  the  Commissioners  shall  accept  it  in  lieu  of 
obtaining  a supply  of  water  from  tlie  other  sources  named: 

Pkovided,  Further,  that  said  Commissioners  are  liereby  di- 
rected to  take  care  of  the  60,000  cubic  feet  ])er  minute  alcove 
contemplated,  if  so  furnished  by  the  City  of  Chicago: 

Provided,  Further,  that  the  adoption  of  this  resolution  shall 
not  commit  the  State  to  a system  of  permanent  drainage  of 
Chicago  sewage  through  either  the  canal  or  Des  Plaines  or 
Illinois  rivers,  but  that  the  state  reserves  the  right  to  require 
the  City  of  Chicago,  in  future  years,  to  take  care  of  its  sew- 
age through  other  channels: 

And  Provided,  Further,  that  if  the  said  City  of  Chicago 
shall  erect  pumping  works  for  the  purpose  of  causing  such 
flow  as  aforesaid,  the  Canal  Commissioners  shall  allow  the 
said  city  to  erect  pumping  works  upon  the  canal  lands  in 
Bridgeport;  and  said  city  shall  support,  control  and  manage 
said  pumping  works,  subject  to  the  direction  of  the  Canal  Com- 
missioners, relative  to  the  amount  of  water  to  be  received  into 
the  canal,  from  time  to  time,  as  the  exigencies  of  the  canal  may 
require,  but  at  the  expense  of' the  said  City  of  Chicago  : 

Provided  Further,  that  the  City  of  Chicago,  its  officers, 
agents  or  employes  shall  derive  from  this  resolution  no  right 
to  control  or  exercise  any  authority  over  any  of  the  gates, 
locks  or  dams  of  said  canal.”  (Laws  of  1881,  pp.  159-161.) 

1881.  At  the  session  of  the  Legislature  begun  January  5,  1881, 
the  Legislature  passed  the  Joint  Resolution  instructing  the  Attor- 
ney General  to  take  ])roceedings  to  ascertain  the  rights  of  the 
State  against  the  Kankakee  River  Improvement  Company. 

In  pursuance  of  this,  the  case  of  People  v.  Kankakee  River  Im- 
provement Company,  103  111.,  491,  was  brought,  which  resulted  in 
the  abrogation  of  the  charter  of  chat  company.  This  case  is  note- 
worthy as  a precedent  for  the  Resolution  under  which  the  present 
proceedings  were  brought — which  Avill  be  noted  hereafter;  and  it 
is  further  noteworthy  for  the  following  ruling: 

”It  is  suggested  that  if  the  State  should  take  into  its  hands 
the  portion  of  the  work  which  has  been  completed  it  would  fall 
into  decay  and  ruin,  from  inalhlity  of  the  State  to  make  re- 
pairs and  keep  it  up,  because  of  the  |)rovision  of  the  constitu- 
tion of  1870,  that  Ahe  General  Assembly  shall  never  loan  the 
credit  of  the  State,  or  make  appropriations  from  the  treasury 


iliereof,  in  aid  of  railroads  or  ('aiials.’  Wo  do  not  understand 
that  tins  provision  would  apply.  It  does  7iot  respect  rivers., — 
ond  }re  do  not  eon.sider  that  a river  t)ecomes  a canal  from  hav- 
ing its  navigation  improved  by  artificial  means.”  (103  111., 
oil.) 

This  is  a jndioial  deterinination  in  a State  ease  that  a river  does 
'not  become  a canal  by  being  improved. 

Applying  this  to  the  Land  (Irant  of  1827,  ‘^granting  a quantity 
of  land  ecpial  to  one-half  of  five  sections  in  width  on  each  side  of 
said  canal,  * * * from  one  end  of  the  said  canal  to  the  other. 

(-1-  U.  S.  Statutes  at  Large,  p.  234-,  Canal  Compilation  of  Laws,  p. 
2),  it  is  plain  that  an  improvement  of  the  river  would  not  have 
secured  the  Land  Grant  for  that  portion  of  the  water  way,  which 
was  so  constructed  in  the  river,  or  for  which  the  river  was  utilized. 
It  was  only  by  building  the  Independent  Canal  the  entire  length  of 
the  line  that  the  Land  Grant  for  the  entire  length  of  the  line  could 
be  obtained. 

The  same  session  of  the  Legislature  memorializes  Congress  to 
appropriate  moneys  to  improve  the  Kankakee  and  Iroquois  rivers. 
(Laws  of  111.,  1881,  p.  163.) 

1882.  April  28th,  the  Legislature  passed  an  Act  ceding  tlie  Illi- 
nois and  Michigan  Canal  to  the  United  States,  subject  to  a refer- 
endum vote  of  the  people.  (Laws  of  1882,  p.  12.) 

It  is  understood  that  the  referendum  failed  to  approve  the  Act, 
by  the  operation  of  that  principle  of  referendunis  which  makes 
a failure  to  vote  on  the  law  a negative  vote. 

1883.  The  Legislature  passed  a Joint  Resolution  reciting  that 
the  owners  of  the  East  bank  of  the  Des  Plaines,  at  the  Adam  dam, 
were  using  the  whole  of  the  water  power,  when  entitled  only  to 
half,  and  directing  the  Canal  Commissioners  to  assume  possession 
and  control  of  half  the  water  power  as  property  of  the  state. 
(Laws  of  1883,  p.  184.) 

In  1886-8  the  U.  S.  Government  built  dams  and  locks  at  Kamps- 
ville  and  La  Grange  to  improve  the  navigation  of  the  Illinois  (U.  S. 
PMgr’s  Rep.,  1887,  Vol.  Ill,  pp.  2119  et  seq.;  111.  Canal  Rep.,  1900, 

p.  212.) 

1887.  June  6th,  the  Legislature  pa.ssed  the  Act  organizing  the 


City  of  Cliica^'o  into  a dnilnago  district.  (Caws  of  1887,  [)a^o 
126.) 

This  was  a precursor  of  the  Act  of  1881)  organizing  the  Sanitary 
District  of  Chicago.  The  Act  contained  the  following  provisions, 
among  others : 

Seiction  2.  Such  corporate  authorities  may  lay  out,  con- 
struct and  maintain  a cut-off  dr  ami  or  ditch  for  the  diversion 
of  f ood  ivaters  of  the  Des  Plaines  River  into  Lake  Michigan, 
at  some  point  north  of  the  City  of  Chicago,  for  the  relief  and 
in  aid  of  the  drainage  system  established  or  to  he  established 
within  said  district,  the  location  and  route,  dimensions  and 
capacity  of  such  cut-off  to  be  determined  by  said  corporate 
authorities.  If  the  location  of  snch  cut-off  shall  occupy  a por- 
tion of  the  North  Branch  of  the  Chicago  Kiver,  said  North 
Branch  may  be  widened  and  deepened  as  shall  be  required. 
Such  cut-off  or  diversion  may  be  so  constructed  and  main- 
tained as  to  answer  the  purpose  of  a drain  for  the  lands 
through  which  it  shall  pass,  and  such  corporate  authorities 
may  allow  said  lands  to  be  drained  into  the  same  upon  such 
terms  and  conditions  as  they  may  determine.  Pkovided,  such 
corporate  authorities  shall  not  be  allowed  to  interfere  with 
any  right  of  drainage  which  the  owners  of  land  have  or  would 
have,  if  such  cut-off  had  not  been  made. 

Sec.  3.  No  more  of  the  water  of  the  Des  Plaines  River 
shall  be  diverted  by  any  such  cut-off  than  the  excess  above  the 
ordinary  water  mark  in  said  stream.  At  the  point  of  diver- 
sion there  shall  be  constructed  and  maintained  such  dams  and 
sluices  as  shall  control  and  regulate  the  amount  of  such  diver- 
sion at  all  times.'  During  dry  weather  no  water  shall  he  di- 
verted in  Lake  Michigan,  and  during  floods  no  more  water  shall 
be  allowed  to  pass  said  point  of  diversion  down  the  river  than 
three  thousand  (3,000)  cubic  feet  per  second. 

Sec.  4.  Such  corporate  authorities  may  construct  and  main- 
tain, if  the  same  shall  be  found  desirable  and  expedient,  a dam 
across  what  is  known  as  the  Mud  Lake  Valley  on  or  near  the 
west  line  of  sections  six  and  seven,  township  thirty-eight 
north,  range  thirteen  east  of  the  third  principal  meridian,  of 
such  dimensions  and  elevation  as  may  be  determined  upon. 

1889.  May  28th,  the  Legislature  ])assed  the  navigation  resolu- 
tion and  the  Act  to  create  sanitary  distilcts,  and  to  remove  obstruc- 
tions in  Des  Plaines  and  Illinois  Rivers.  These  were  passed  on 
the  same  day,  and  are  construed  as  one  enactment.  The  resolution 
is  as  follows : 

River  Improvement,  Deis  Plaines  and  Illinois. 

Whereas,  The  Illinois  River  from  La  Salle  to  Grafton,  is 


tlio  reiniiant  of  an  ancient  stream  bed  bordered  })y  wide  and 
low  bottomed  land,  niiieli  cut  ni)  by  lake,  bayou  and  marsh;  an 
alluvial  stream  of  small,  low  water  volume  and  sluggish  cur- 
rent, with  a declivity  of  only  26  feet  in  225  miles,  a declivity 
so  small  as  to  reciuire  a large  volume  of  water  to  maintain  an 
effective  channel;  a stream  which  in  its  natural  condition  is 
able  to  maintain  but  a small  depth  through  the  deposits  with 
which  the  tributaries  constantly  tend  to  clioke  the  channel ; a 
tendency  ever  increasing  with  the  inhabitation  of  the  water- 
shed and  the  cultivation  and  reclamation  of  lands. 

AVttereas,  The  erection  of  dams  with  a view  to  the  creation 
of  ])ools  of  slack  water  for  the  purpose  of  navigation,  dimin- 
ishes the  scouring  force  of  the  current  at  medium  and  low 
"stages  and  promotes  channel  decay,  causes  deposits  in  the 
mouths  of  tributaries  and  the  more  ready  overflow  of  the  bot- 
tom lands ; and  generally  the  tendency  is  to  restore  the  natural 
channel  of  equilibrium  at  a higher  level  with  great  ultimate 
injury  to  the  valley  from  overflow  and  unhealthfulness,  a ten- 
dency already  exhibited  in  a notable  degree  from  the  condi- 
tions created  by  the  dams  erected  by  the  State  at  Henry  and 
Coiqieras  Creek,  in  1872  and  1877  respectively. 

Whereas,  The  completion  by  the  United  States  of  the  dams 
at  La  Grange  and  Campsville  will  raise  the  general  level  of 
the  river  below  Copperas  Creek  by  several  feet  and  promote 
all  those  injurious  tendencies  to  channel  decay,  with  overflow 
and  unhealthfulness  already  exhibited  through  the  agency  of 
the  state  works  at  Henry  and  Copperas  Creek. 

Whereias,  The  official  report  of  the  United  States  for  1868, 
showed  that  it  was  practicable  to  obtain  by  dredging  and  a 
minimum  low  water  volume  at  Peru  of  38,000  cubic  feet  per 
minute,  a channel  for  navigation  of  a width  of  160  feet  and  a 
depth  exceeding  four  feet  and  the  official  report  for  1880 
showed  that  it  was  practicable  to  obtain  a channel  for  naviga- 
tion 200  feet  wide  and  six  feet  deep  by  dredging,  and  a mini- 
mum flow  of  94,000  cubic  feet  per  minute  in  the  river  below 
Copperas  Creek,  and  that  the  cost  was  not  materially  ditferent 
from  the  cost  of  the  improvement  by  locks  and  dams. 

AVhereas,  The  j^resent  addition  to  the  low  water  volume  of 
the  Illinois  river  througli  the  summit  level  of  the  Illinois  and 
Michigan  Canal  from  Lake  ]\richigan  more  than  doubles  the 
volume  of  water  used  in  the  estimate  of  1868  for  the  channel 
below  Peru  and  adds  50  per  cent  to  the  volume  used  in  the 
estimate  of  1880  for  the  channel  below  Copperas  Creek,  and 
said  contribution  from  Lake  Michigan  will  be  increased  in  the 
immediate  future  thus  enabling  the  depth  now  projected  for 
navigation  below  Peru  to  be  obtained  by  channel  improvement 
at  moderate  cost,  and  with  decided  advantage  to  material  in- 
terests and  to  healthfulness  along  the  valley. 


455 


WiiKHiOAS,  It  is  (‘ontoniplatcHl  to  in(*r(*as(‘  tlio  volurtK*  from 
Lake  Mi(4ii^an  to  500, 000  (*iibio  foot  por  minute  within  a few 
years  and  nltiniatoly  to  add  ()00,000  (*iibi(^  foot  oi-  more,  thus 
enabling  a large  de])tli  for  navigation  to  be  obtained  i)y  an 
improved  eliannel,  will  be  self-sustaining  and  self-improving 
and  will  discliarge  flood  water  more  readily,  thus  benefiting 
the  bordering  lands  and  increasing  the  healthfnlness  of  the 
valley. 

Whereas,  Works  now  projected  by  the  City  of  Chicago  will 
form  part  of  a water-way  of  large  proportions  from  Lake 
Michigan  via  the  Des  Plaines  and  Illinois  rivers  to  the  Mis- 
sissippi river,  of  which  the  dams  and  locks  upon  the  alluvial 
section  of  the  Ililnois  river  can  form  no  part  and  which,  if 
allowed  to  remain,  will  increase  the  overflow  and  be  detri- 
mental to  the  welfare  of  the  Illinois  valley  and  the  interests 
of  the  State.  Therefore  be  it 

Resolved,  by  the  Senate,  the  House  of  ReiPresentatives 
Concurring  Herein, 

1.  That  it  is  the  policy  of  the  State  of  Illinois  to  procure 
the  construction  of  a water-way  of  the  greatest  practicable 
depth  and  usefulness  for  navigation  from  Lake  Michigan  via 
the  Des  Plaines  and  Illinois  rivers,  to  the  Mississippi  river, 
and  to  encourage  the  construction  of  feeders  thereto  of  like 
])roportions  and  usefulness. 

2.  That  the  United  States  Is  here!)y  recpiested  to  sto]i  w6rk 
u])on  the  locks  and  dams  at  liaCrange  at  (5im])sville  and  to 
apply  all  funds  available  and  future  api)ro])riations  to  the 
improvement  of  the  channel  from  LaSalle  to  the  mouth,  with  a 
view  to  such  a deptli  as  will  be  of  ])resent  utility,  and  in  such 
manner  as  to  develop  ])rogressively  all  the  depth  ])racticable 
by  the  aid  of  a large  water  sup])ly  from  Lake  Michigan  at 
Chicago. 

5.  That  the  United  States  is  re(|uested  to  aid  in  the  con- 
struction of  a channel  not  less  than  IbO  feet  wide  and  22  feet 
deep  with  such  a giaule  as  to  give  a velocity  of  5 miles  per 
hour  from  Lake  Michigan  at  (diic'ago  to  Lake  doliet,  a ])ool  of 
the  Des  Plaines  river,  immediately  below  Joliet,  and  to  ])roject 
a channel  of  similar  capacity  and  not  less  than  14  feet  dee]) 
from  Lake  Joliet  to  LaSalle,  all  to  be  designed  in  such  man- 
ner as  to  permit  future  development  to  a greatei'  (‘a])acity. 

Ado])ted  by  the  House  May  27,  1889. 

Concurred  in  by  the  Senate  May  28th,  1889. 

(Laws  of  1889,  ])ages  575-37r).) 

The  ‘‘Act  to  Create  Sanitary  Districts,  and  to  Remove  01)stru(*- 
tions  in  the  Des  Plaines  and  Illinois  Rivers”  contained,  among 
other  things,  tlie  following  provisions: 

Section  7.  The  l)oard  of  trustees  of  anv  sanitarv  district 


oj'^anized  uiidor  tills  Act  shall  have  [)()wor  to  provide  for  the 
drainage  of  siu'li  district  by  laying-  out,  establishing,  construct- 
ing oi-  maintaining  one  or  more  niain  channels,  drains,  ditclies 
and  outlets  for  ('ariying  off  and  disposing  of  the  drainage 
(iiK'luding  the  sewage)  of  su(‘h  district,  together  with  such 
adjuiK'ts  and  additions  thereto  as  niay.be  necessary  or  proper 
to  cause  such  (hiannels  or  ourlets  to  accomplisli  the  end  for 
which  they  are  designed  in  a satisfactory  manner;  also  to 
nialie  and  establish  docks  adjacent  to  any  naviyahle  channel 
made  under  the  provisions  hereof  for  drainage  purposes,  and 
to  lease,  manage  and  control  such  docks,  and  also  to  control 
and  dispose  of  any  water-power  which  may  lie  incidentally 
created  in  the  construction  and  use  of  said  channels  or  outlets, 
hut  in  no  case  shall  said  board  have  any  power  to  control 
water  after  it  passes  l)eyond  its  cliannel,  water-ways,  races  or 
structures  into  a river,  natural  water-way  or  channel,  or  water- 
power or  docks,  situated  on  such  river,  or  natural  water-wa> 
or  channel : Peovided,  However,  nothing  in  this  Act  shall  be 
construed  to  abridge  or  prevent  the  State  from  requiring  here- 
after a portion  of  the  funds  derived  from  such  water-power, 
dockage  or  wharfage  to  be  paid  into  the  State  Treasury  to  be 
used  for  State  purposes.  Such  channels  or  outlets  may  ex- 
extend  outside  the  territory  included  within  such  sanitary  dis- 
trict, and  the  rights  and  powers  of  said  board  of  trustees  over 
the  portion  of  such  channel  or  outlet  lying  outside  of  such  dis- 
trict shall  be  the  same  as  those  vested  in  said  board  over  that 
portion  of  such  channels  or  outlets  within  the  said  district. 

Sec.  20.  Any  channel  or  outlet  constructed  under  the  pro- 
visions of  this  Act,  which  shall  cause  the  discharge  of  sew- 
age into  or  through  any  river  or  stream  of  water  beyond  or 
without  the  limits  of  the  district  constructing  the  same,  shall 
be  of  sufficient  size  and  capacity  to  produce  a continuous  flow 
of  water  of  at  least  two  hundred  cubic  feet  per  minute  for 
each  one  thousand  of  the  population  of  the  district  drained 
thereby,  and  the  same  shall  be  kept  and  maintained  of  such 
size  and  in  such  condition  that  the  water  thereof  shall  be 
neither  offensive  or  injurious  to  the  health  of  any  of  the  people 
of  this  State,  and  before  any  sewage  shall  be  discharged  into 
such  channel  or  outlet  all  garbage,  dead  animals,  and  parts 
thereof,  and  other  solids  shall  be  taken  therefrom. 

Sec.  23.  If  any  channel  is  constructed  under  the  provisions 
hereof  by  means  of  which  any  of  the  waters  of  Lake  Michigan 
shall  be  caused  to  pass  into  the  Des  Plaines  or  Illinois  Eivers, 
such  channel  shall  be  constructed  of  sufficient  size  and  capac- 
ity to  produce  and  maintain  at  all  times  a continuous  flow  of 
not  less  than  three  hundred  thousand  cubic  feet  of  water  per 
iniRute,  and  to  be  of  a depth  of  not  less  than  fourteen  feet,  and 
a current  not  exceeding  three  miles  per  hour,  and  if  any  portion 


of  any  such  (‘liaimel  shall  ('ut  thi-oii^ii  a Ici-rilory  with  a 
ro(‘ky  stratiini  where  siK'h  rocky  stratum  is  above  a ^‘rade  suf- 
ticieut  to  pro(lu(‘e  a depth  of  water  from.  Lake  Michigan  of  not 
less  than  eighteen  feet,  sucli  {)ortion  of  said  channel  shall  have 
double  tlie  tiowing  ca])acity  above  provided  foi-,  and  a widtli 
of  not  less  than  one  hundred  and  sixty  feet  at  the  bottom 
capal)!e  of  producing  a depth  of  not  less  tlian  eighteen  feet  of 
Avater.  If  the  population  of  the  district  drained  into  sucli  clian- 
uel  shall  at  any  time  succeed  1,500,000,  such  channel  shall  be 
made  and  kept  of  such  size  and  in  sucli  condition  that  it  will 
produce  and  maintain  at  all  times  a continuous  flow  of  not 
less  than  20,000  cubic  feet  of  Avater  per  minute  for  each  100,- 
000  of  the  population  of  such  district  at  a current  of  not  more 
than  three  miles  per  hour,  and  if  at  any  time  the  general 
gOA^ernment  shall  improA^e  the  Des  Plaines  or  Illinois  PiAmrs, 
so  that  the  same  shall  be  capable  of  recehung  a flow  of  000,- 
000  cubic  feet  of  Avater  per  minute,  or  more,  from  said  chan- 
nel, and  shall  proAude  for  the  payment  of  all  damages  AAdiich 
any  extra  flow  above  300,000  cubic  feet  of  AAmter  per  minute 
from  such  channel  may  cause  to  priAmte  property  so  as  to  saAm 
harmless  the  said  district  from  all  liability  therefrom,  then 
such  sanitary  district  shall  vrithin  one  year  thereafter,  en- 
large the  entire  channel  leading  into  said  Des  Plaines  and  Illi- 
nois from  said  district  to  a sufficient  size  and  capacity  to  pro- 
duce and  maintain  a continuous  flow  throughout  the  same  of 
not  less  than  600,000  cubic  feet  of  Avater  per  minute  Avith  a 
current  of  not  more  than  three  miles  ])er  hour,  and  such  chan- 
nel shall  be  constructed  upon  such  grade  as  to  be  capa- 
ble of  ])roducing  a dei)th  of  A\mter  not  less  than  eighteen  feet 
throughout  said  (fliannel,  and  shall  hae^e  a width  of  not  less 
than  one  hundred  and  sixty  feet  at  the  bottoin.  In  case  a 
channel  is  constructed  in  the  Des  Plaines  River,  as  contem- 
plated in  this  sec'tion,  it  shall  be  carried  doAvn  the  sloj^ie  be- 
tAA^^een  Lock})ort  and  Joliet  to  tiie  pool  commonly  knoAvn  as  the 
basin,  of  sufficient  width  and  depth  to  cari'y  off  the  watei* 
the  channel  shall  bring  doAvn  from  abo\m.  The  district  con- 
stiaicting  a channel  to  carry  water  from  Lake  Michigan  of  any 
amount  autliorized  by  this  act  mai)  correct,  luodify  and  remove 
()J)stnicfions  in  the  Des  Plaines  and  Illinois  Rirers  ndierever  it 
shall  be  necessary  so  to  do  to  prevent  overflon'  or  damaye 
alony  said  river,  and  shall  i*emove  the  dams  at  ifenry  and 
Cop})eras  Creek  in  the  Illinois  River,  befoi*e  any  water  shall 
be  turned  into  the  said  channel. 

And  the  (hxnal  Commissioners,  if  they  shall  find  at  any 
time  that  an  additional  sup])ly  of  Avater  has  been  added  to 
either  of  said  rivers,  l)y  any  drainage  district  or  districts  to 
maintain  a de])th  of  not  less  than  six  feet  from  any  dam 
OAvned  by  the  State  to  and  into  the  first  lock  of  the  Illinois 


1-58 


and  Alielii^ari  ('anal  at  LaSalle,  without  the  aid  of  any  sucli 
dam,  at  low  water,  then  it  .sludl  be  the  duty  of  said  Canal 
Conunissioners  to  cause  such  dam  or  dams  to  be  removed. 
This  act  shall  not  be  construed  to  authorize  the  injury  or 
destruction  of  existing  water-power  rights. 

Sec.  24.  When  such  channel  shall  be  completed,  and  the 
water  turned  therein  to  the  amount  of  three  hundred  thousand 
cubic  feet  of  water  per  minute,  the  same  is  hereby  declared  a 
navigable  stream,  and  whenever  the  general  government  shall 
improve  the  I)es  Plaines  and  Illinois  Rivers,  for  navigation, 
to  connect  with  this  channel,  said  general  government  shall 
have  full  control  over  the  same  for  navigation  purposes,  but- 
not  to  interfere  with  its  control  for  sanitary  or  drainage  pur- 
poses. 

Sec.  27.  * * * If  any  channel  is  constructed  under  the 

provisions  of  this  act,  which  shall  discharge  the  sewage  of  a 
population  of  more  than  300,000  into  or  through  any  river 
beyond  or  without  the  limits  of  the  district  constructing  it, 
the  same  shall  be  constructed  in  accordance  with  the  provi- 
sions of  section  23  of  this  act,  and  if  any  such  channel  receives 
its  supply  of  water  from  any  river  or  channel  connecting  with 
Lake  Alichigan,  it  shall  be  construed  as  receiving  its  supply 
of  water  from  Lake  Michigan. 

Approved  May  29,  1889.  (Laws  of  1889,  pages  129,  133- 
137.) 

1895.  August  2d,  the  Legislature  passed  resolutions  urging 
Congress  to  adopt  and  carry  on  a comprehensive  plan  of  harbor 
improvement  upon  the  Illinois  shore  of  Lake  Michigan.  (Laws  of 
1895,' Extra  Session,  page  11.) 

1895.  June  10th,  there  went  into  effect  an  amendment  to  sec- 
tions 12  and  20  of  the  Sanitary  District  Act,  by  increasing  the 
amount  of  taxes  authorized,  and  amending  section  20  so  as  to  com- 
pel the  Sanitary  District  to  maintain  in  its  channel  20,000  cubic 
feet  of  water  for  each  100,000  inhabitants.  (Laws  of  1895,  First 
Session,  pages  168-169.) 

1897.  The  Legislature  amended  the  ‘L\ct  to  Create  Sanitary 
Districts  and  Remove  Obstructions  from  the  Des  Plaines  and  Illi- 
nois Rivers,”  by  altering  Section  12  so  as  to  provide:  “that  no 
part  of  the  taxes  hereby  authorized  shall  be  used  by  such  drainage 
district  for  the  construction  of  permanent,  fixed,  immovable 
bridges  across  any  channel  constructed  under  the  provisions  of 
this  act ; ’ ’ and 

Provided  further.  That  all  bridges  built  across  such  chan- 


iiel  shall  not  uniUH^essaril y nilorroro  with  or  ohslrnol  tlio 
navigation  of  snoli  channel  when  the  same  })e(‘.omes  a navigable 
stream,  as  provided  in  section  24  of  this  act,  })ut  snc'h  bridges 
shall  be  so  constructed  that  tliey  can  })e  raised,  swung  or 
moved  out  of  the  way  of  vessels,  tugs,  boats  or  other  water- 
crafts navigating  such  channel ; and. 

Provided  further,  That  notliing  in  this  act  shall  he  so  con- 
strued as  to  compel  said  district  to  maintain  or  operate  said 
bridges  as  movable  bridges  for  a period  of  seven  years  from 
and  after  the  time  when  the  water  has  been  turned  into  said 
channel  pursuant  to  law,  unless  the  needs  of  general  naviga- 
tion on  the  Des  Plaines  and  the  Illinois  Rivers,  when  con- 
nected with  said  channel,  sooner  require  it. 

As  amended  by  L.  1897,  p.  209,  May  13,  July  1. 

(4  Starr  & Curtis,  pp.  452-453.) 

1901.  May  13th,  the  Legislature  passed  the  following: 

An  Act  Extending  the  Powers  or  Sanitary  Districts  Or- 
ganized Under  an  Act  Entitled,  ^^An  Act  to  Create  Sani- 
tary Districts  and  to  Remove  Obstructions  in  the  Des 
Plaines  and  Illinois  Rivers,^'  Approved  Maa^  29,  1889,  in 
Force  July  1,  1889,  to  Enable  Such  Districts  to  Improve 
Certain  Navigable  Streams  Within  or  Auxiliary  to  Such 
District  and  to  Build  Bridges  Across  Such  Streams. 

Section  1.  Be  it  enacted  by  the  people  of  the  State  of 
Illinois,  represented  in  the  General  Assembly  : That  any 
sanitary  districts  organized  under  an  ^Vct  entitled,  ‘‘An  Act 
to  Create  Sanitary  Districts  and  Remove  Obstructions  in  the 
Des  Plaines  and  Illinois  Rivers,”  a])])roved  May  29,  1889^  in 
force  July  1,  1889,  which  heretofore  has  or  may  hereafter  use 
any  navigable  stream  or  river  for  a ])ortion  of  its  chaimel, 
or  as  an  adjunct  thereto  or  auxiliary  to  its  main  channel,  may 
for  the  purpose  of  widening,  deepening  or  improving  the 
same,  for  purpose  set  forth  in  the  act  aforesaid,  acipiire  by 
purchase,  or  under  and  ])ursuant  to  the  eminent  domain  laws 
of  this  State,  or  otherwise,  sufficient  land  for  the  pur])ose  of 
making  such  im])rovement  by  widening  and  deepening  said 
stream,  as  aforesaid. 

Sec.  2.  That  wherever  it  has  or  may  become  necessary  by 
reason  of  the  widening,  deepening  or  improving  of  such  river, 
to  construct  bridges  to  meet  the  altered  or  changed  condition 
of  such  stream  or  river,  such  sanitary  district  or  districts  may 
construct  such  bridge  or  bridges  as  such  improvement,  here- 
tofore made  or  hereafter  to  be  made,  may  require. 

Sec.  3.  Nothing  herein  contained  shall  he  construed  as, de- 
priving any  city,  village  or  town  situated  wholly  or  ]ia)*tly 
within  the  limits  of  said  sanitary  district  of  any  ]iower  now 
exercised  in  the  oi)eration  of  said  bridges;  and  any  ])i'idges 


4(10 


built  under  the  provisions  of  this  net  to  supply  or  replace  a 
pnlilic  street  or  liigliway  bridge,  now  or  hereafter  existing, 
shall,  after  the  construction  of  said  bridge,  be  oy)erated  and 
conti’olled  for  ninnicii)al  purposes  by  said  (hty,  village  or  town 
within  which  it  is  located. 

Approved  May  18,  1901. 

(Laws  of  190i,  ])age  104.) 

ddie  only  streams  in  the  District  were  tlie  Des  Plaines  and  Clii- 
cago  Rivers.  This  Act  plainly  recognized  these  two  rivers  as  navi- 
gable. 

1908.  Alay  14th,  tlje  l^egislature  passed  the  following  Act: 

An  Act  in  Ixelation  to  the  Sanitary  District  of  Chicago,  to 
Knlarge  the  Corporate  Limits  of  Said  District,  and  to 
l^ROVIDE  for  the  NAVIGATION  OF  THE  CHANNELS  CREATED  BY 
Such  District,  and  to  Construct  Dams,  Waterwheels  and 
Other  Works  Necessary  to  Develop  and  Eender  Available 
THE  Power  Arising  from  the  Water  Passing  Through  its 
Channels,  and  to  Levy  Taxes  Therefor. 

Section  1.  Be  it  enacted  by  the  people  of  the  State  of 
Illinois  represented  in  the  General  Assembly:  That  the 
corporate  limits  of  the  Sanitary  District  of  Chicago  be.  and 
the  same  are  hereby,  extended  so  as  to  embrace  and  include 
within  the  same,  the  territory  and  tracts  of  land  situated  in 
the  County  of  Cook  and  State  of  Illinois,  hereinafter  described 
as  follows,  viz. : 

(Here  follows  a description  of  area  giving  enlarged  boun- 
daries.) 

Sec.  2.  The  Board  of  Trustees  of  said  Sanitary  District 
shall  have  the  right  to  provide  for  the  drainage  of  the  addi- 
tional territory  added  to  said  Sanitary  District  by  this  Act, 
by  laying  out,  establishing,  constructing  or  maintaining  one 
or  more  channels,  drains,  ditches  and  outlets  for  carrying  off 
and  disposing  of  the  drainage  (including  the  sewage)  of  such 
district,  together  with  such  adjuncts  and  additions  thereto 
as  may  be  necessary  or  proper  to  cause  such  channels  or  out- 
lets to  accomplish  the  end  for  which  they  are  designed  in  a 
satisfactory  manner,  and  shall  have  the  right  to  use  what  is 
known  as  the  ^Walumet  feeder”  of  the  Illinois  and  Michigan 
Canal,  and  lands  adjacent  to  such  feeder  belonging  to  the 
State  of  Illinois  for  the  site  of  any  such  channel,  within  the 
limits  of  the  county  in  which  such  district  is  situated,  in  such 
manner  as  said  district  may  elect,  and  shall  also  have  the 
right  to  construct  a channel  across  said  Illinois  and  Alichigan 
Canal,  without  being  required  to  restore  said  Illinois  and 
^Michigan  Canal  or  said  feeder  to  its  former  usefulness.  If, 
by  reason  of  said  abandonment,  a stagnant  stream  or  pool  of 


\vat(M-  shall  rtanaiii  upon  llie  deposits  of  (hiiea^o  sewage,  ar*- 
(‘iinuilaied  in  said  Illinois  and  Mi(*Jii^an  (yanal  f)y  r(;asoM  ot 
its  years  of  nsetnlness  by  the  (hty  of  (hii(*ago  as  a s(‘vva^e  out- 
let, said  Sanitary  District  shall  till  nj)  said  (*anal  to  a depth 
snfheient  to  remove  said  eonditioii,  and  prevent  the  si)read  of 
pestilence  and  disease  tlironghont  the  teri-itory  in  which  said 
Illinois  and  Michigan  Canal  is  abandoned;  and  the  other  ])ow- 
ers  and  jurisdiction  of  said  Sanitary  District  of  Chicago,  ovei- 
and  in  connection  with  such  added  territory,  shall  be  the  same 
as  that  vested  in  it  over  tlie  territory  included  within  the 
limits  of  said  Sanitary  District,  as  originally  organized.  Be- 
fore said  Calumet  channel  is  connected  with  the  present  main 
sanitary  channel,  gates  of  suitable  pattern  for  shutting  off 
the  flow  of  water  into  said  Calumet  channel  shall  be  installed 
at  or  near  the  connection  of  said  Calumet  channel  with  the 
Calumet  River,  and  forever  maintained  for  use  in  case  of  an 
emergency,  and  for  the  protection  of  the  property  and  lives 
of  residents  of  the  Illinois  valley,  and  shall  maintain  the 
same  proportion  of  dilution  of  sewage  through  such  auxiliary 
channels  as  it  may  construct  and  join  to  its  main  channel  as 
is  now  required  by  the  Act  creating  said  Sanitary  District. 
Provided,  liorcever,  that  before  any  such  channel  is  constructed 
across  said  Illinois  and  Michigan  C^anal,  or  the  navigation  of 
said  canal  in  any  manner  interfered  wnth,  said  Sanitary  Dis- 
trict of  Chicago  shall  connect  its  present  main  channel  from  the 
controlling  works  at  Lockport  with  the  upper  basin  of  the 
Illinois  and  Michigan  Canal  at  Joliet,  by  a channel  of  a depth 
of  not  less  than  ten  (10)  feet  and  a width  of  not  less  than 
one  hundred  and  sixty  (100)  feet  through  its  entire  length, 
in  which  channel  so  to  be  constructed,  said  sanitary  district 
shall  provide  and  construct  a lock  or  locks  of  the  size  of  at 
least  twenty-two  (22)  feet  iji  width  by  one  hundred  and  thiily 
(180)  feet  in  length,  between  mitre  sills,  connecting  up'per  and 
lower  levels,  and  provide  suitable  j)rotection  for  wnter  craft 
in  using  said  locks  and  channel.  Said  locks  shall  be  con- 
structed of  the  most  improved  ])attern  of  their  size,  and  be 
])erfectly  safe  for  use,  and  be  e(pup])ed  with  machinery  to 
operate  the  same;  and  if  only  one  lock  is  constructed,  it  shall 
be  provided  with  double  gates  to  i)revent  accident,  and  said 
Sanitary  District  shall  forever  maintain  and  0})erate  the  same. 
Provided,  further,  that  said  Sanitary  District  shall  furnish, 
free  of  all  expense,  for  the  perpetual  use  of  the  Canal  Com- 
missioners, at  some  point  in  the  township  of  Lockport  to  be 
agreed  upon  by  the  Canal  Commissioners  and  the  Sanitary 
District  lAustees,  a strip  or  parcel' of  land  bordering  upon 
said  sanitary  channel,  eight  hundred  (800)  feet  in  length  and 
one  hundred  and  thirty  (130)  feet  in  width,  filling  the  same 
to  a suitable  deptli  to  jirovide  suitable  roadways  for  ap- 


(locks,  shops,  hams  and  other  hiiildiiigs  controlled  by  the 
(kinal  (^onnnissioners  and  used  in  (‘onnection  with  the  opera- 
tion of  the  Illinois  and  Michigan  (Mnal. 

Sec.  d.  Said  Sanitary  District  shall  permit  all  water  craft 
navigating,  or  i)urposing  to  navigate  said  Illinois  and  Michi- 
gaii  (kinal,  to  navigate  the  water  of  all  said  channels  of  said 
Sanitary  District  ])ronii)tly,  without  delay  and  without  ])ay- 
inent  of  any  tolls  or  lockage  charges  for  so  navigating  in  said 
channels.  The  rules  of  the  United  States  Government  now  in 
force,  regulating  navigation  on  the  Chicago  River,  shall  gov- 
ern navigation  on  the  channels  of  said  Sanitary  District  of 
Chicago.  Provided,  hoivever,  that  the  speed  of  all  vessels 
while  passing  through  the  earth  sections  shall  not  exceed  eight 
(8)  miles  per  hour.  * * * 

Sec.  8.  The  said  Sanitary  District  shall,  at  the  expense  of 
said  District,  in  all  respects  comply  with  the  provisions  of  the 
Acts  of  Congress  of  March  22,  1822,  and  March  2,  1827,  as 
construed  hy  the  courts  of  last  resort  of  the  State  of  Illinois 
and  of  the  United  States,  in  relation  to  the  Illinois  and  Michi- 
gan Canal,  so  far  as  it  affects  that  portion  of  the  Illinois  and 
Michigan  Canal  vacated  or  abandoned  bv  the  terms  of  this 
Act.  ^ ^ 

Approved  May  14,  1903. 

(Laws  of  1903,  pp.  115-117.) 

This  Act  is  notable  for  several  reasons : 

First.  It  recognizes  the  Sanitary  District  of  Chicago  by  name 
as  a separate,  distinct  agency  of  the  government  of  the  State  of 
Illinois. 

Second.  It  authorizes  the  Sanitary  District  to  close  up  the 
Calumet  feeder  and  certain  portions  of  the  Illinois  and  Michigan 
Canal. 

Third.  It  requires  the  Sanitary  District  to  furnish  a substitute 
channel,  before  closing  up  outlets  of  the  Canal. 

It  puts  the  channel  of  the  Sanitary  District  in  place  of  the  Canal, 
and  as  an  auxiliary  to  the  Canal  for  purposes  of  navigation. 

1905.  Section  1 of  the  Act  was  amended  so  as  to  enable  addi- 
tional territory  to  be  included  therein,  by  referendum  vote.  Act 
of  May  13,  1905.  (Laws  1905,  page  199.) 

1905.  ^lay  11,  the  method  of  electing  Trustees,  and  the  powers 
and  duties  of  the  Board  were  changed.  (Laws  1905,  pages  198- 
199.) 


4(;:j 

1907.  I)y  Acts  {ij)i)r()vc(l  lA'hriuu'y  2711i  nnd  May  27)111,  19t)7, 
the  Act  was  aiiieiuled  in  Sechiotis  2,  4,  8,  9,  11,  12  and  19: 

Section  12  relating’  to  the  levy  and  (‘ollechion  ol*  taxes,  hut  re- 
taining the  i)rovision  for  movable  bridges. 

Section  19  regulating  the  liability  of  the  Sanitary  District  for 
damage  of  land  “by  reason  of  the  construction,  enlargement 
or  use  of  any  channel,  * * * outlet  or  other  iiiiprovement 

under  tlie  i)rovisions  of  this  act.”  (Ijaws  1907,  pp.  284,  287.) 

1907.  October  16th,  the  Legislature  passed  the  following  reso- 
lutions (Ex.  M.  of  Information;  introduced  Ahst.,  p.  932)  : 

Deep  Waterway — Proposed  Amendment  to  State  Consti- 
tution. Ratified  by  People  Nov.  3,  1908. 

(Senate  Joint  Resolution  No.  26.) 

Resolved,  by  the  Senate,  the  House  of  Representatives 
CONCURRING  HEREIN,  That  there  shall  be  submitted  to  the  elec- 
tors of  this  State  at  the  next  election  of  members  of  the  Gen- 
eral Assembly,  a proposition  to  amend  the  Constitution  of 
this  State,  to  wit: 

Resolved,  That  the  separate  section  of  the  Constitution  of 
this  State  relating  to  the  Canal  be  amended  to  read  as  fol- 
lows : 

The  Illinois  and  Michigan  Canal,  or  other  canal  or  water- 
way owned  by  the  State  shall  never  be  sold  or  leased  until 
the  specific  proposition  for  the  sale  or  lease  thereof  shall  first 
have  been  submitted  to  a vote  of  the  people  of  the  State  at  a 
general  election,  and  have  been  approved  by  a majority  of  all 
the  votes  polled  at  such  election.  The  General  Assembly  shall 
never  loan  the  credit  of  the  State  or  make  ap])ropriations  from 
the  treasury  thereof,  in  aid  of  railroads  or  canals; 

Provided,  That  any  surplus  earnings  of  any  canal,  water- 
way or  water  power  may  be  appropriated  or  iiledged  for  its 
enlargement,  maintenance  or  extension;  and. 

Provided,  further,  That  the  General  Assembly  may,  by 
suitable  legislation,  provide  for  the  construction  of  a deep 
waterway  or  canal  from  the  present  water  power  plant  of 
the  Sanitary  District  of  Chicago,  at  or  near  Lockport,  in  the 
tovmship  of  Lockport,  in  the  County  of  Will,  to  a point  in  the 
Illinois  River  at  or  near  Utica,  which  may  be  })ractical  for  a 
general  plan  and  scheme  of  deep  waterway  along  a route 
which  may  be  deemed  most  advantageous  for  such  ])lan  of 
deep  waterway;  and  for  the  erection,  e(]uipment  and  main- 
tenance of  power  yilants,  locks,  bridges,  dams  and  appliances 
sufficient  and  suitable  for  the  development  and  utilization  of 
the  water  power  thereof;  and  authorize  the  issue  from  time 
to  time  of  bonds  of  this  State  in  a total  amount  not  to  exceed 
twenty  million  dollars,  which  shall  draw  interest,  payable 


4(4 


scMiii-ainiiial ly,  at  a I'at^  not  to  (ixceod  four  per  cent  per  au- 
niini,  the  proeeeds  whereof  may  he  a})})]ied  as  tlie  Oeueral  As- 
seiiilhy  may  pr-ovide,  in  the  eonstruetiori  of  said  waterway, 
and  ill  tlie  erection,  ecjiiiyiment  and  maintenance  of  said  power 
plants,  locks,  bridges,  dams  and  a])pliances. 

All  ])ower  developed  troni  said  waterway  may  lie  leased 
in  part  or  in  whole,  as  the  (teneral  Assembly  may  by  law 
jirovide;  !)ut  in  the  event  of  any  lease  being  so  executed,  the 
rental  specified  tlierein  for  water  power  shall  be  subject  to  a 
re-valuation  eacli  ten  years  of  tlie  term  created,  and  the  in- 
come therefrom  shall  be  paid  into  the  treasury  of  the  State. 
Adopted  by  the  Senate  October  16,  1907. 

Concurred  in  by  the  House,  October  16,  1907. 

(L.  1907-8,  Adjourned  Session,  pp.  102-3.) 

1907.  October  15-16.  1)ee[p  Waterway  Committee. 

(Senate  Joint  Kesolution  No.  23.) 

Whereas,  There  lias  never  been  adecpiate  and  comprelien- 
sive  legislation  in  the  State  of  Illinois  relating  to  the  rights  of 
the  State  in  Lake  Michigan,  the  Mississippi,  MMbash  and  Ohio 
Livers,  as  set  forth  in  Act  1 of  the  Constitution,  or  to  Rock 
River,  the  Illinois  River,  the  Vermilion,  the  Kankakee  River, 
the  Embarrass  River,  the  Kaskaskia  River  and  the  Little  Wa- 
bash River  and  their  various  tributaries,  covering  the  subjects 
of  sanitation  and  navigation,  water  power,  reclaiming  waste 
lands  and  kindred  matters;  and, 

AVhereas,  The  overflowed  lands  of  these  streams  are  of  in- 
calculable value,  if  redeemed,  and  of  little  or  no  value  as  they 
now  are,  besides  being  a menace  to  the  health  of  a large  and 
increasing  population;  and. 

Whereas,  The  State  has  expended  large  sums  of  money  in 
making  and  maintaining  the  Illinois  and  Michigan  Canal,  and 
expended  money  for  the  improvement  of  the  Illinois  River  and 
the  Little  Wabash,  and  granted  a charter  to  the  Sanitary  Canal 
Commissioners,  with  vast  and  sweeping  powers,  which  said 
Commission  is  now  seeking  to  enlarge  its  powers  by  further 
legislation;  and 

AVhereas,  Much  of  the  past  expenditure  by  reason  of  changed 
conditions,  has  been  unwise  or  ceased  to  be  of  value;  and 
"Whereas,  All  intelligent  and  progressive  people  of  the  State 
are  in  favor  of  a deep  waterway  from  the  lake  to  the  gulf,  and 
do  not  desire  to  retard  the  making  of  such  a channel ; and, 
AVhereas,  The  taxpayers  of  the  State  have  the  right  to  de- 
mand that  neither  the  State  nor  its  citizens  have  any  of  their 
rights  abridged  or  taken  from  them  by  hasty  and  ill-advised 
action  of  the  General  Assembly;  now,  therefore,  be  it 

Resolved,  by  the  Senate,  the  House  of  Representatives 
CONCURRING  THEREIN,  That,  in  Order  to  fully,  carefully  and 
])romptly  investigate  the  subject-matter  above  referred  to,  that 


4(15 


the  presiding-  ()rii('er  of  llie  Senate  he,  and  Innaihy  is,  anthoi-iz(i(J 
to  appoint  live  (5)  ineinhei's  of  the  Senate;  and  tliat  the 
S[)eaker  of  tlie  Jlonse  be,  and  lie  is  hereby  antliorized  to  afi- 
point  five  (5)  members  of  the  House;  and  that  tlie  governor 
be  re(]nested  and  is  hereby  antliorized  and  emiiowered  to  ap- 
point five  (5)  well  qualified  and  disinterested  men  to  act  with 
the  members  of  the  Senate  and  House,  and  who,  together 
Avith  said  members  of  the  Senate  and  House,  shall  be  known 
as  ‘‘The  Deep  Waterway  Committee.” 

It  shall  be  their  duty  to  ascertain  the  rights  and  powers  of 
the  State  of  Illinois  to  the  waters  mentioned  herein,  and  to 
make  a comprehensive  and  exhaustive  investigation  of  the 
rivers  and  canals  of  this  State ; and  to  define  and  report  what 
need  there  is  for  legislation  in  reference  thereto,  and  to  con- 
sider and  define  the  rights  of  the  State  and  riparian  oAAUiers 
to  the  inherent  or  developed  water  power,  factory  sites,  tolls 
for  transportation  on  said  Avaters,  reasonable  prices  of  water 
power  upon  these  canals  and  rivers,  and  to  make  recommend- 
ation for  such  legislation  as  Avill  promote  the  welfare  of  the 
whole  people  and  restrain  any  over-reaching  and  oppressiAm 
action  of  any  individual  or  corporation  relative  to  any  ]:>art 
of  the  subject  involved; 

Also  to  deAuse  and  recommend  the  appointment  of  a suita- 
ble commission,  to  be  permanently  established,  with  poAver  to 
control  the  uses  and  charges  of  such  waterways,  keeping  the 
rights  of  the  State,  the  rights  of  individuals  and  corpora- 
tions and  the  rights  of  the  peo])le  aa4io  may  desire  to  use  these 
Avaters,  along  lines  similar  to  the  ilailroad  and  Warehouse 
Commission  in  i*eference  to  common  carriers. 

And  that  these  ])ersons  so  to  be  a})])oiiited,  at  once  enter 
Tipon  their  duties  here  outlined,  and  that  they  may  be  re- 
(juired  to  make,  on  or  before  August  1,  1908,  a full  re})ort  of 
their  action  in  the  i)remises  to  the  OoA^ernor,  Avith  such  bills 
or  amendments  to  the  present  laws  as  they  may  deem  Avise  and 
needful. 

And  that  these  persons  so  to  be  ai)})ointed.  at  the  time  of 
making  their  report,  present  a sworn  account  of  their  expenses 
and  the  time  in  AAdii(‘h  they  AA^ere  engaged  in  this  service. 

And  that  the  Governor  be  recjuested  to  recommend  to  the 
next  General  Assembly  an  ap])ro})riation  to  defray  such  ex- 
penses and  pay  these  persons  so  to  be  appointed  for  their  serv- 
ices thus  rendered. 

Adopted  by  the  Senate  October  15,  1907. 

Concurred  in  bA^  the  House  October  10,  1907. 

(Laws  1907-1908,  pages  102-104.) 

1907.  November  27,  the  Legislature  passed  the  folloAAnng  reso- 
lution : 


CANAL  (’OM  MISSION CANC^ELLATION  OF  LEASES,  ETC. 

(House  Joint  liesolution  No.  J>8.) 

Whereas,  JJie  (^aiial  (,\)]ninissioners  ap])ointe(l  under  and 
l)y  viidne  of  ‘‘An  Act  to  revise  the  law  in  relation  to  the  Illi- 
nois and  Michigan  (^anal,  and  for  the  imi)roveinent  of  the  Illi- 
nois and  Little  Wahasli  liivers,”  a})proved  Alarcli  27,  1874,  in 
force  duly  1,  3874,  liave  at  various  times  lieretofore  executed 
leases  of  water  power  and  water  privileges  to  ])rivate  indi- 
viduals and  corporations,  under  and  l)y  virtue  of  the  powers 
granted  to  said  commissioners  hy  section  8 of  the  above  en- 
titled Act,  and  that  among  the  said  leases  were  certain  alleged 
leases  or  agreements  to  Harold  T.  (Iriswold,  dated  September 
2,  A.  I).  1904,  purporting  to  grant  and  convey  certain  rights 
and  privileges  in  and  to  the  waters  and  water  povrer  of  the 
Des  Plaines  and  Kankakee  Rivers ; and, 

W^hekeas,  The  said  Harold  T.  Griswold,  or  his  assignees,  hy 
virtue  of  said  alleged  leases  or  agreements,  are  building  and 
constructing  certain  dams,  controlling  works,  locks  and  other 
obstructions  in  and  across  said  streams,  which,  in  the  opinion 
of  this  General  Assembly,  are  destructive  of  the  navigation  of' 
said  streams,  and  to  the  disadvantage  of  the  State  of  Illinois; 
and, 

Whereas,  The  sixth  clause  of  section  3,  (8)  of  said  Act  pro- 
vides, among  other  things,  as  follows  : 

“All  leases  of  water  povv^er  and  extensions  thereof  shall  be 
subject  to  the  right  of  the  commissioners  to  resume  without 
compensation  to  the  lessee,  the  use  of  any  such  water  power 
for  the  purpose  of  the  canal,  and  also  wholly  to  abandon  or 
destroy  the  work  by  the  construction  of  which  the  water  priv- 
ilege shall  have  been  created,  whenever,  in  the  opinion  of  the 
Legislature,  such  work  shall  cease  to  be  advantageous  to  the 
State;”  and, 

Whereas,  The  construction  of  such  dams,  controlling  works, 
locks  and  other  obstructions  being  erected  and  constructed  by 
the  said  Harold  T.  Griswold,  or  his  assigns,  have  ceased  to  be 
advantageous  to  the  State,  and  that  such  water  power  and 
water  prhdleges  therein  purporting  to  have  been  granted  in 
and  by  virtue  of  said  leases  or  agreements  are  necessary  for 
the  purpose  of  the  canal ; therefore,  be  it 

Resolved,  by  the  House  or  Representatives,  the  Senate 
CONCURRING  THEREIN,  That  Said  Canal  Commissioners  are 
hereby  empowered  and  directed  to  cancel  and  annul  said  al- 
leged leases  or  agreements  and  any  and  all  extensions  thereof 
and  to  resume  all  such  water  power  and  water  privileges 
therein  purported  to  have  been  granted  to  the  said  Harold  T. 
Griswold  by  the  said  Canal  Commissioners  on  September  2, 
A..  D.  1904,  and  that  said  water  power  and  water  privileges 
be  restored  for  the  purpose  of  the  canal  and  that  all  such 


4G7 


(lams,  (‘oiiii-olling  works,  Io(*ks  araj  ()tli(3r  ohstniciioiis  llioroin 
existini>‘  for  the  purpose  ot*  ereating  such  water  f)ower  and 
water  [xrivi leges  he  fortliwitli  abandoned  and  d(‘stroyed  by 
su(‘h  Canal  (k)mmissioners. 

Adopted  by  the  House  November  27,  1907. 

Concurred  in  by  the  Senate  November  27,  1907. 

(Laws  of  1907-8,  Adjourned  Session,  |)ages  101-102.) 

1907.  December  (i,  the  Legislature  passed  the  following  statute 
on  the  navigability  of  the  Des  Plaines  and  Illinois  Eivers: 

An  Act  Recognizing  the  Des  Peaines  and  Illinois  Riveks  as 

Navigable  Streams,  and  to  Prevent  Obstructions  Being 

Placed  Therein,  and  Remove  Obstructions  Therein  Now 

Existing. 

Section.  1.  Be  it  enacted  by  the  people  of  the  State  of 
Illinois,  represented  in  the  General  Assemblah  That  the 
Des  Plaines  and  Illinois  Rivers  tliroiigliont  tlieir  courses  from 
and  below  the  water  power  plant  of  the  main  channeb  of  the 
Sanitary  District  of  Chicago  in  the  township  of  Lockport,  at 
or  near  Lockport  in  the  County  of  Will,  are  hereby  recognized 
as  and  are  hereby  declared  to  be  navigable  streams ; and  it  is 
made  the  special  duty  of  the  Governor  and  of  the  Attorney 
General  to  prevent  the  erection  of  any  structure  in  or  across 
said  streams  without  explicit  authority  from  the  General  As- 
sembly; and  the  Governor  and  Attorney  General  are  hereby 
authorized  and  directed  to  take  the  necessary  legal  action  or 
actions  to  remove  all  and  every  obstruction  now  existing  in 
said  rivers  that  in  any  wise  interferes  with  the  intent  and 
puriiose  of  this  Act. 

Sec.  2.  Whereas,  An  emergency  exists;  this  Act  shall  be 
in  force  and  effect  from  and  after  its  passage. 

Approved  December  G,  1907. 

(Laws  1907-1908,  Adjourned  Session,  pages  92  and  99.) 


IV. 

THE  riEINOIS  AND  MICHIGAN  CANAL  AS  A FACTOR  TOUCHING  THE  NAVI- 
GATION OF  THE  DES  PLAINES  RIVER. 

But  it  has  been  asked — if  the  Des  Plaines  River  is  navigable,  why 
was  the  Illinois  and  Michigan  Canal  built  alongside  of  it?  Wby 
was  not  the  river  itself  used? 

Reply:  (1)  Because  the  use  of  tbe  river  would  not  have  ob- 
tained tbe  land  grant;  and  (2)  because  of  convenience  of  con- 
struction. 


4(;8 


Tlie  A(*t  of  (^ongress  of  Maroli  2,  1827  (C.^anal  Ckanpilation,  pp. 
2-.‘))  grants  to  tlie  State  of  Illinois, 

^‘foi*  the  pnri)ose  of  aiding  tlie  said  State  in  o])ening  a canal 
to  unite  the  waters  of  tlie  Illinois  River  with  those  of  Lake 
Michigan,  a (]uantity  of  land  equal  to  one-half  of  five  sections 
in  width  on  each  side  of  said  canal,  and  reserving  each  alter- 
nate section  to  the  United  States,  to  be  selected,  etc.  * * * 

‘‘Section  2.  * * * That  so  soon  as  the  rovte  of  the  said 

canal  shall  he  located  and  agreed  on  by  the  said  State,  it  shall 
be  the  duty  of  the  governor  thereof,  or  such  other  person  or 
])ersons  as  may  have  been,  or  shall  hereafter  be,  authorized 
to  superintend  the  construction  of  said  canal,  to  examine  and 
ascertain  the  particular  sections  to  which  said  State  will  be 
entitled,  under  the  provisions  of  this  Act,  and  report  the 
same  to  the  Secretary  of  the  Treasury  of  the  United  States.’’ 

At  the  time  the  Land  Grant  Act  was  passed  the  length  of  the 
canal  had  not  been  ascertained  nor  its  termini  located. 

Three  links  of  canal  were  needed: 

(1)  A canal  20  miles  long  was  needed  to  connect  the  Chicago 
River  with  the  Des  Plaines — and  which  has  now  been  superseded 
by  the  Drainage  Canal.  The  waters  were  only  6 miles  apart  in 
dry  weather  and  connected  in  wet  weather,  but  the  canal  had  to 
be  long  enough  to  pass  over  the  Divide  and  let  the  water  run  away 
from  the  lake  instead  of  into  the  lake. 

(2)  There  was  a place  at  the  Grand  Rapids  of  Illinois,  near  the 
present  town  of  Marseilles,  where  a canal  about  three  miles  long 
was  needed. 

(3)  There  was  a i^lace  in  Joliet,  near  the  present  site  of  dam  Xo. 
1,  where  a short  canal  was  needed.  The  rest  of  the  way  the  river 
could  be  used. 

In  House  document  263  the  report  for  1905  of  the  engineers,  after 
giving  a table  of  the  velocities,  on  page  41  they  say: 

“This  table  is  designed  to  show  the  greatest  velocities 
which  occur  from  Utica  to  Joliet.  The  largest  of  all  is  at  the 
Jefferson  Street  bridge  in  Joliet  and  is  seven  and  four-tenths 
miles  per  hour.  The  next  largest  is  one  mile  below  Marseilles 
and  is  five  miles  per  hour.  Studying  the  table  in  conjunction 
with  the  profile  indicates  that  from  LUica  to  the  foot  of  Moore’s 
Island,  a distance  of  12.3  miles,  the  maximum  varies  from  2.8 
to  3.6  miles  per  hour.  From  the  foot  of  Moore’s  Island  to 
the  middle  of  Bell’s  Island,  a distance  of  2.3  miles,  the  veloc- 
ity increases  to  4.3  miles  per  hour.  From  this  point  up  stream 


40!) 


the  veloeity  to  iiu'rease  «ms  vve  ap[)r()aeli  tli(‘  lVrar‘S(‘i Il(;s  Oarri, 
which  is  1247  miles  from  (Jral'ton.  (h’afton  is  at  the  inoatli  ot* 
tlie  river.  One  mile  below  the  darn  the  velocity  was  five  miles 
an  hour.  Just  below  the  dam  it  has  been  inifrossible  to  com- 
pute the  velocity  as  there  is  not  sufficient  data  on  hand,  but 
it  was  probably  no  less  than  seven  miles  an  hour.  From 
Marseilles  dam  to  Seneca,  a distance  of  4.4  miles,  the  velocity 
varies  from  3.5  to  4.1  miles,  the  greater  value  being  found 
only  at  one  section. 

‘‘From  Seneca  to  Patterson  Island  at  the  head  of  Lake 
Joliet,  a distance  of  32.7,  the  maximum  velocity  varies  f]*om 
2.1  to  3.1  per  hour.  There  are  two  exceptions  to  this,  namely, 
at  the  mouth  of  the  Des  Plaines  Piver  and  at  Treat’s  Island, 
where  it  is  impossible  to  compute  the  velocity  as  there  are 
not  sufficient  data  on  hand.  It  would  probably  not  exceed  four 
miles  per  hour  at  either  place  for  a distance  of  about  half  a 
mile.  Proceeding  up  stream  from  Lake  Joliet,  the  velocity  in- 
creases up  to  Dam  No.  1 at  Joliet.  At  the  Jefferson  Street 
bridge,  the  computed  velocity  is  7.4  per  hour  from  the 
flood  of  1904.  From  the  preceding  investigation  it  has  been 
decided  that  the  velocities  which  were  obtained  during  the 
extreme  high  water  are  prohibitive  only  below  Marseilles  and 
Joliet  dams.  Under  the  adopted  project,  a canal  about  three 
miles  long  has  been  provided  on  each  of  these  sections.  The 
velocity  from  the  Marseilles  dam  to  Seneca,  namely,  34  to  4 
miles  an  hour,  is  obstructive  but  not  prohibitive,  as  these 
floods  occur  only  at  rare  intervals  and  are  of  short  duration 
and  it  is  not  considered  necessary  to  leave  the  river  bed  at 
this  section. 

“The  same  remarks  apply  to  the  section  just  below  the  pro- 
posed canal  at  Marseilles  and  to  the  short  sections  at  the 
mouth  of  the  Kankakee  River  and  Treat’s  Island.”  (House 
Doc.  263,  pp.  41-42.)  (Abst.,  p.  661.) 

In  the  passage  from  the  re})ort  of  Major  Benyaurd  of  1883,  he 
said : 

“Looking  at  the  matter  from  an  engineering  point  of  vieir, 
it  is  difficult  to  understand  what  led  originally  to  the  con- 
struction of  the  canal  rather  than  the  improvement  of  the 
natural  channel  of  the  river.”  (Abst.,  p.  1699.) 

Probably  the  distinguished  engineer  who  wrote  that  report  did 
not  have  in  his  mind  the  land  grant  five  and  a half  miles  wide  on 
each  side  of  the  canal.  Here  we  have  a stretch  three  miles  long 
at  Marseilles  where  the  report  of  1905  says  that  the  canal  will  be 
needed,  and  a stretch  of  3 miles  long  at  Jelferson  Street  bridge 
and  Dam  No.  1 where  a canal  is  needed.  These  points  are  50  or 


470 


()0  inilos  a])art.  With  the  land  grant  for  oacli  inile  of  tlie  oanal 
throngliout  its  longtli,  we  can  see  a reason  wliy  the  State  in  1880 
would  make  the  eanal  the  whole  lengtli,  while  in  1905  an  engineer 
who  had  no  land  grant  to  sjveak  of  and  no  premium  on  mileage, 
would  make  his  (-anal  as  sliort  as  tlie  necessities  of  tlie  case  re- 
(liiired  and  would  liave  a canal  tliree  miles  long  at  one  ])lace  and 
three  miles  long  at  another. 

That  the  land  grant  was  considered  as  a motive  for  making  as 
many  miles  of  canal  as  ])ractical)le  is  avowed  by  W.  F.  Thornton, 
IT-esident  of  the  i^oard  of  (kinal  Commissioners,  in  his  message 
to  tlie  citizens  of  Ottawa  in  July,  188().  He  said: 

‘‘Canal  Office,  Chicago,  July  11,  1836. 

“Committee  of  the  Citizens  of  Ottawa. 

“Centlemen:  Your  communication  of  the  23d  ult.  was  laid 
before  the  Board  of  Canal  Commissioners  at  their  first  full 
session,  after  the  receipt  of  it,  and  I hasten  to  apprise  you  of 
the  result.  You  inquire  ‘whether  it  is  contemplated  by  the 
hoard  to  cause  a survey  of  the  Illinois  River,  or  any  part  of 
it,  to  be  made  with  a view  of  its  ultimate  improvement  for 
slack  water  navigation,’  and  we  presume  that  you  allude  more 
especially  to  that  part  of  the  river  lying  between  Ottawa  and 
the  western  boundary  of  the  canal  lands. 

“By  reference  to  the  44th  section  of  the  act  for  the  con- 
struction of  the  Illinois  and  Alicliigan  Canal,  approved  the  9th 
of  January,  1836,  it  will  be  seen  that  the  Legislature  have 
ordered  the  canal  to  terminate  ‘at  or  near  the  mouth  of  the 
Little  Vermilion  River,  in  La  Salle  County,  and  on  lands 
owned  by  the  State.’ 

“WJien  this  Act  was  passed,  the  question  was  not  new, 
whether  a continuation  of  the  canal,  or  an  improvement  of  the 
river  below  Ottawa  by  lock  and  dam  was  most  advantageous 
to  the  general  interest.  The  Legislature  had  accumulated  a 
large  fund  of  information  in  order  to  judge  of  the  compara- 
tive advantages  and  disadvantages  of  each  plan,  both  in  rela- 
tion to  the  safety  and  stability  of  navigation,  and  to  the  iur 
creased  revenue  derivable  fro}n  State  property  hy  terminating 
the  canal  as  low  down  the  river  as  ivas  contemplated  in  the 
grant  of  lands  from  the  Govermnent  of  the  United  States,  Nor 
can  it  he  dotibted  that  the  tenor  of  that  grant  tiad  some  influ- 
ence on  the  decision. 

***** 

“ ‘The  Commissioners  shall  have  power,’  says  the  law,  ‘to 
cause  an  engineer  to  examine  the  Illinois  River,  from  the  mouth 
of  Fox  River,  down  to  the  head  of  steamboat  navigation ; and 
if,  in  their  opinion,  the  navigation  of  the  Illinois  can  be  ini- 


471 


proved  by  lo(^ks  and  dams,  oi-  ()lli(‘rvvis(‘,  so  as  to  s(M‘nj-(‘  its 
navigation  as  tar  ni)wai'd  as  the  nioiitli  of  Fox  Riven*,  with 
as  little  expense  and  as  niiieli  utility  as  eanalling*  rroin  tin; 
Fox  River  to  tlie  Little  Vermilion  or  the  Foot  oF  the  rapids, 
they  shall  have  power  to  terminate  said  (‘anal  at  month  oF  h'ox 
river.’  In  1883,  the  same  engineer  reported  that  a eomijara- 
tively  good  route  conld  he  obtained  For  the  eontimiation  oF 
the  canal  from  the  month  of  Fox  River  to  a jjlace  now  known 
as  Utica  and  that  great  difficnlty  and  expense  would  attend  a 
further  progress.  In  examining  the  rapids  of  the  Illinois  below 
the  mouth  of  Fox  River,  he  says,  Ut  was  ascertained  that  the 
establishment  of  a still  water  navigation  wms  the  most  certain 
and  effectual  method  of  improving  them.’  But  in  his  zeal  to 
demonstrate  the  superiority  of  a railroad  over  either  mode 
of  water  communication,  he  admitted  a steamboat  canal 
around  the  rapids,  Uo  be  of  too  precarious  a nature  to  be  rec- 
ommended with  any  degree  of  confidence  in  its  permanency 
and  usefulness.’  He  estimated  an  independent  canal  between 
Fox  River  and  Utica  at  $580,000;  and  a still  water  navigation 
for  the  same  distance  at  $200,000;  and  it  is  worthy  of  remark 
that  notwithstanding  this  great  disparity  of  cost  necessarily 
enhanced  by  the  difficult  country  l)etween  Utica  and  the  mouth 
of  the  Little  Vermilion,  the  Legislature  have  thought  proper 
to  repeal  the  eighth  section,  just  cited,  and  to  adhere  to  the 
first  plan.  In  fact,  they  have  presented  the  termini  in  language 
not  to  be  misunderstood,  while  they  have  given  great  latitude 
and  almost  everything  else  connected  with  the  subject,  hence 
the  Commissioners  deem  themselves  unauthorized  at  this  time 
to  cause  a survey  of  the  rapids  of  the  Illinois  River  ‘witli  a 
view  of  their  ultimate  improvement  for  slack  water  naviga- 
tion;’ nor  would  they  be  justified  to  any  premeditated  sus])en- 
sion  of  that  particular  line  for  the  sole  purpose  of  bringing 
the  matter  again  before  the  Legislature,  unless  the  engineei*s 
(who  have  recently  ascertained  that  a safe  canal  and  suitable 
termination  are  entirely  practicable)  should  prove  by  their  es- 
timates that  the  cost  will  so  far  exceed  any  previous  calcula- 
tion as  to  render  it  ])rudent,  on  the  part  of  the  Commissioners, 
to  report  that  fact  to  the  (xovernor  and  ])ause  for  additional 
legislation.  * * * 

^H^aking  this  view  of  the  sul)ject,  the  Commissioners  can 
make  no  pledge  Uo  cause  any  part  of  the  river  to  be  surveyed, 
with  a view  of  slack  water  navigation,’  except  in  the  contin- 
gency before  mentioned  or,  in  the  further  one,  of  the  Fox 
River  feeder,  and  the  division  along  the  rapids  not  being  got 
under  contract  during  the  present  season.  Should  either  of 
those  events  take  place,  an  accurate  survey  from  Ottawa  down 
will  be  made  this  fall  when  the  water  is  low,  and  plans  and 
estimates  submitted  to  the  Legislature. 

‘Mn  coming  to  this  conclusion,  the  Board  of  Commis 


ai'o  iiifliioiKMMl,  ill  tlio  first  case,  by  the  consideration  that  if  a 
continuous  canal  should  be  shoivn  to  he  too  costly  for  its  bene- 
fits, a still  water  navigation  will  be  the  only  alternative;  and, 
in  tlie  second  case,  ])y  tlieir  anxiety  to  do  everything  consist- 
ent with  tlieir  duty,  to  ])roinote  the  interest  and  gratify  the 
wislies  of  tlie  enterprising  citizens  of  so  important  a town  as 
Ottawa.  A point  in  which  the  State  is  deeply  concerned  and 
one  which,  in  no  event,  can  fail  to  arrive  at  immense  conse- 
(juence.” 

(Canal  Report,  1900,  pp.  109-110-111.)  (Abst.,  pp.  1868- 
1870.) 

(See,  also,  pp.  6-16-350,  ante,  extracts  from  Engineer  (lood- 
ing’s  Report,  suggesting  that  the  river  be  used.) 

Engineer  William  Gooding,  who  laid  out  and  began  the  construc- 
tion of  the  canal,  by  his  report  in  1836  as  to  the  location,  plan  and 
initial  work  of  the  canal,  answered  the  question  then  rife,  as  to 
why  the  Des  Plaines  River  was  not  used,  as  follows : 

‘‘The  former  line  or  route  of  the  old  surveys  was  found  to 
be  far  the  most  favorable,  the  distance  for  which  the  through 
cut  would  have  to  be  made,  and  the  depth  of  cutting  being 
much  less.  This  line  passes  over  ground  but  little  elevated 
above  the  surface  of  Portage  Lake  at  an  ordinary  stage  of 
water,  and  which  is  mostly  inundated  during  the  floods  of  the 
Des  Plaines,  the  waters  of  which,  it  is  well  known,  frequently 
flows  across  this  low  country  into  the  south  branch  of  the 
Chicago  River.  A particular  examination  was  also  made  of 
Portage  Lake  and  of  the  Des  Plaines  River,  with  the  view 
of  occupying  portions  of  each  with  the  canal  should  the  re- 
sult prove  favorable.  But  it  was  found  that  no  saving  could 
be  effected  by  such  an  arrangeynent.  Portage  Lake  is  a suc- 
cession of  ponds  on  the  same  level,  connected  with  each  other 
and  with  the  Des  Plaines  River,  and  extending  about  six 
miles  toward  Chicago  River,  nearly  in  the  direction  of  the 
canal  line.  The  surface  of  the  water  at  an  ordinary  stage  is 
lOj  feet  above  Lake  Michigan,  and  from  11  to  12  feet  above 
bottom  of  canal.  To  excavate  the  canal  to  the  requisite  depth 
through  these  ponds  and  the  marshes  on  their  borders,  would 
be  attended  with  great  difficulty  and  a cost  far  exceeding  that 
of  making  the  through  cut  along  the  borders  of  the  marshes 
on  ground  more  favorable. 

“The  examination  of  the  Des  Plaines  River  resulted  no  less 
unfavorably  than  that  of  Portage  Lake.  The  bed  of  this 
stream  for  13^  miles  below  the  point  where  the  canal  line 
enters  the  valley,  except  in  a very  few  places  and  for  short 
distances  only,  is  from  8 to  12  feet  above  bottom  of  canal,  and 


noiliiiig  wliaievor  ('oiild  he  gained  by  oceupying  any  portion  of 
the  cliannel,  as  the  difflcidty  of  disposing  of  or  keeping  out  the 
tvafers  of  the  river  to  make  the  necessary  excavations j would 
more  than  balance  tlie  diminution  of  the  quantity  to  be  exca- 
vated by  sucli  a location.” 

(Canal  Com’rs  Eeport  for  1900,  p.  119;  Keport  of  William 
Cooding,  Chief  Eng’r,  1838;  Trans.,  p.  0399.)  (Abst,, 
p.  1873.) 

The  State  authorities  believed  that  the  land  grant  was  ample, 
and  more  than  ample,  for  building  the  canal,  and  would  pay  for 
it  and  leave  a large  surplus,  and  that  it  was  desirable  to  make 
the  canal  as  long  as  the  circumstances  would  justify  in  order  to 
get  as  large  a surplus  as  possible  to  provide  for  unforeseen  con- 
tingencies. Having  need  of  three  miles  of  canal  at  Joliet,  three 
miles  of  canal  at  Marseilles,  and  20  to  30  miles  to  connect  the 
Chicago  Eiver  with  the  Des  Plaines,  they  decided  to  make  a canal 
extending  all  the  way  from  the  east  end  of  the  easternmost  canal 
to  the  west  end  of  the  westernmost  canal  and  obtain  as  large  a land 
grant  as  possible. 

That  their  belief  was  reasonable  is  shown  by  the  immediate  re- 
sults. 

The  Canal  Eeport  for  1900,  page  80,  shows  that  in  1830  canal 
lands  were  sold  to  the  amount  of  $13,505.61. 

In  1836  (id.,  p.  116)  lots  in  Chicago  were  sold  to  the  net  amount, 
exclusive  of  forfeitures,  of  $1,355,755. 

And  the  report  says  that  there  were  then  unsold,  in  1836  (p.  119), 
270,182  acres,  or  nearly  seven-eigths  of  the  whole. 

The  estimate  of  the  cost  of  the  canal  made  by  the  State  in  its 
memorial  to  Congress  January  18,  1826,  appears!  on  page  69  of  the 
Canal  Commissioners’  Eeport  for  1900: 

‘Wour  memorialists  have  caused  the  route  to  be  explored 
and  estimates  to  be  made  of  the  probable  expense  of  the  work, 
from  which  it  appears  that  the  cost  of  constructing  the  canal 
will  not  be  less  than  $600,000  and  may  possibly  amount  to 
$700,000.  • 

^‘To  the  end,  therefore,  that  your  memorialists  may  be  en- 
abled to  commence  and  complete  this  great  and  useful  work, 
we  pray  your  honorable  body  to  grant  to  this  State  the  re- 
spective townships  of  land  through  which  the  contemplated 


474 


(*aiial  inay  [)ass;  tlie  avails  of  Avliidi  to  be  aj)propriated  ex- 
(‘lusively  to  the  construction  of  said  canal  upon  such  terms 
and  (‘onditions  as  to  your  lionoralhe  body  may  seem  proper. 

And  as  an  inducement  to  Congress  to  make  tlie  land  grant  the 
memorial  states: 

‘‘The  public  lands  in  the  vicinity  would  not  only  sell,  but  at 
a considerable  advance  upon  the  minimum  price.’’  (Id.) 

(The  grant  equaled  five  sections  or  3,200  acres  per  mile.) 

Tf  the  canal  went  straight  through  a township  (the  unit  per 
mile  asked  by  the  memorial)  on  an  east  and  west  or  north  and  south 
line,  the  grant  would  be  one  township  (36  sections)  for  each  six 
miles  of  canal,  or  6 sections,  3,840  acres  per  mile.  If  the  canal 
Avent  through  the  township  on  a diagonal  line  from  corner  to  cor- 
ner, the  grant  would  be  one  township  (36  sections)  for  84  miles 
of  canal  (nearly),  or  about  2,700  acres  (4.2  sections)  per  mile. 
The  grant  of  five  section  to  the  mile  is  not  greatly  different  from 
the  amount  asked  by  the  memorial. 

The  actual  estimates  by  Post  and  Paul  are  given  on  page  202  of 
Canal  Report  for  1900,  viz.:  “first  route  is  estimated  at  $716,- 
110.71,  second  route  is  estimated  at  $639,542.78.  There  are  3 other 
estimates,  viz.:  $668,289.68,  $882,610.20  and  $689,746.96.  (Abst., 
pp.  1903-1904.) 

The  defense  endeavored  to  meet  this  by  saying  that  the  canal, 
which  is  102  miles  long,  under  this  land  grant  would  get  502  square 
miles,  or  326,400  acres,  which  at  $1.25  an  acre  would  be  $408,000, 
while  the  estimate  of  cost  quoted  above  was  from  $600,000  to  $700,- 
000. 

But  we  submit  that  there  is  no  justification  for  assuming  that 
the  entire  land  grant  on  this  great  improvement  in  this  choicest 
region  would  go  at  $1.25  an  acre.  They  did  not  go  for  that  price. 
Five  or  six  dollars  an  acre  was  considered  too  low.  Again,  these 
figures  entirely  overlook  the  great  profits  from  the  town  sites, 
which,  as  we  have  seen,  yielded  over  a million  dollars  on  the  sale 
of  1836  and  left  seven-eighths  of  the  land  grant  unsold.  From  all 
that  is  known,  it  is  clear  that  their  expectation  was  that  the  canal 
would  cost  from  $600,000  to  $700,000,  and  that  the  land  grant 
would  yield  several  millions  of  dollars. 


Ill  18,‘)8  the  ('^anal  (commissioners  took  occasion  to  r(‘poat  tlio 
estimate  they  made,  using-  tlie  following  language  in  their  re[)ort 
to  Governor  Carl  in  : 

‘‘In  eonelusioii,  the  Commissioners  reiterate  tlie  opinion, 
expressed  in  tlie  first  annual  report  to  the  Governor,  that  ‘if 
these  lands  and  town  lots  be  very  gradually  and  cautiously 
brought  into  market,  reserving  the  chief  part  until  the  canal 
shall  have  been  completed,  and  all  its  advantages  clearly  un- 
derstood, there  is  more  than  enough  to  build  it  on  the  present 
capacious  and  permanent  plan.  But,  on  the  contrary,  if  sales 
be  forced  and  all  the  lands  be  disposed  of  before  their  true 
value  be  known,  there  cannot  fail  to  be  a default  of  several 
millions  of  dollars.  Many  tracts  of  land  that  would  not  bring 
more  than  five  or  six  dollars  per  acre  if  sold  immediately , 
may  be  worth,  a few  years  hence,  from  twenty  to  one  hundred 
dollars.  Innumerable  instances  of  the  kind  might  be  adduced, 
some  of  them  in  the  vicinity  of  the  canal.’  ” 

(Canal  Com’rs  Keport,  1900,  pp.  151-2.)  (Abst.,  p.  1889.) 

That  estimate,  viz.,  th?d  the  lands  ought  not  to  be  sacrificed  for 
five  or  six  dollars  an  acre,  was  made  in  1838,  in  the  midst  of  the 
great  depression  following  the  panic  of  1837,  which  was  far  and 
away  the  severest  panic  and  financial  depression  the  country  has 
ever  known. 

In  fine,  there  was  expected  a great  profit  in  the  land  grant,  and 
they  laid  out  the  canal  as  long  as  possible  to  get  as  much  profit 
as  possible,  and  as  there  was  no  land  grant  to  go  with  the  use  of 
the  river  they  discarded  the  river. 

The  memorial  was  presented  to  Congress  in  1826  (Stead’s  Canal 
Comp.,  pp.  12-13;  111.  Sess.  Laws,  extra  session,  1826,  p.  97).  At 
that  time  the  standard  size  of  the  canal  contemplated  was  fixed  by 
the  Act  of  January  17,  1825,  section  5,  at  “forty  feet  wide  at  the 
summit  water  line,  twenty-eight  feet  wide  at  bottom.^’  (Stead’s 
Canal  Comp.,  p.  9.) 

In  1838,  when  the  commissioners  estimated  that  the  land 
grant  would  still  pay  for  the  canal  on  its  “present  capacious  and 
permanent  plan,”  the  size  of  the  canal  contemplated  was  “forty- 
five  feet  wide  at  the  surface,  thirty  feet  at  the  base.^^ 

The  deliberate  estimate  of  the  Commissioners  in  1836,  and  again 
in  1838,  was  that  the  land  grant  would  still  pay  for  a canal  forty- 


five  feet  wide,  while  at  tlie  time  the  memorial  was  framed  and 
the  $700,000  estimate  was  made  they  were  figuring  upon  a canal 
forty  feet  wide. 

We  know,  of  course,  that  in  the  end  the  canal  cost  ten  times  their 
estimate.  That  is  something  aside  from  the  argument.  The  argu- 
ment is  that  they  built  a canal  and  got  a land  grant,  and  that  they 
expected  to  make  a profit  on  the  land  grant  and  therefore  made 
the  canal  as  long  as  possible  instead  of  using  the  river. 

Engineer  Gooding,  in  his  report  for  1838,  says  (Canal  Report  of 
1900,  p.  157)  : ‘^Wherever  an  improvement  upon  the  original  plan 
increasing  the  cost  over  the  original  estimates,  has  suggested 
itself,  during  the  progress  of  the  work,  the  facts  have  been  com- 
municated to  your  board  and  I have  had  the  satisfaction  to  find 
that  it  has  been  deemed  more  important  to  increase  the  perma- 
nency, utility,  and  symmetry  of  the  canal,  and  ultimate  value  of 
state  property  than  to  keep  the  cost  in  every  instance  within  the 
original  estimate.’^  It  was  the  old  question  of  how  to  make 
water  run  up  hill — the  answer  is,  ^^cut  down  the  hill.”  That  is, 
the  river  bed  ivas  lOI  feet  above  LaJce  Michigan. 

To  connect  it  with  the  lake  without  loivering  the  river  bed,  would 
simply  make  the  river  run  into  the  lake  and  drain  it  off  from  its 
southwestern  course  to  the  Illinois,  and  destroy  the  water  connec- 
tion that  already  existed.  To  use  the  river  and  connect  it  with  the 
lake  involved  cutting  the  river  bed  over  12  feet  deeper,  or  alterna- 
tively an  elaborate  system  of  locks,  dams  and  controlling  works 
in  the  river  itself,  and  on  a much  larger  scale  than  in  a canal.  So 
they  decided  to  cut  a new  ditch  4^  feet  deep  on  the  surface  of  the 
ground  and  feed  the  river  into  it  at  the  summit  level.  This  was 
not  because  the  Des  Plaines  was  not  navigable  but  because  it  would 
require  a cut  in  the  river  bed  over  12  feet  deep  to  make  the  canal 
from  the  lake  run  away  from  the  lake.  And  so  to  deepen  the  river 
to  a grade  below  the  level  of  Lake  Michigan  would  involve  con- 
trolling and  disposing  of  the  river  water  while  the  deepening  was 
going  on.  Similar  questions  led  to  the  construction  of  the  Erie 
Canal  alongside  the  navigable  Mohawk  for  over  a hundred  miles. 
So,  in  1868,  Gen.  Wilson  and  Engineer  Gooding  (the  same  man 
who  built,  the  canal)  recommended  to  the  II.  S.  Government  the 


477 


Imildiiig  of  ii  (*aiial  from  tlio  (4iic*ag-o  River  to  Joliet  and  tlie  use 
of  the  river  from  Joliet  on;  and  said: 

‘‘We  are  of  opinion  that  it  will  be  found  expedient  in  eon- 
structing  a canal  of  so  large  capacity  as  the  one  proposed,  in 
a material  of  such  exceedingly  difficult  character,  to  make  it 
entirely  outside  of  the  present  line,  so  that  the  whole  work 
may  be  prosecuted  in  the  most  advantageous  manner  at  all 
seasons  of  the  year  without  interfering  with  the  navigation  of 
the  canal/ ^ 

That  is,  although  the  canal  from  Chicago  to  Joliet  was  already 
there,  and  was  navigable,  it  would  be  more  convenient  and  econo- 
mical to  build  a new  one  alongside  of  it  than  to  enlarge  the  old 
one ; that  they  recommended  building  a new  and  larger  and  better 
one  alongside  did  not  in  any  way  tend  to  prove  that  the  old  canal 
was  not  navigable.  The  same  questions  led  to  the  digging  of  the 
entirely  new  Drainage  Canal  alongside  of  the  Illinois  and  Michi- 
gan Canal.  They  parallel  each  other  for  30  miles.  The  digging 
of  the  new  canal  did  not  prove  that  the  old  one  was  not  navigable. 
Nor  did  the  digging  of  the  old  canal  parallel  to  the  river  prove 
anything  in  regard  to  the  navigability  of  the  river. 

It  has,  indeed,  had  the  effect  of  clouding  the  subject.  The  canal 
put  the  river  out  of  business.  It  was  more  convenient.  It  was 
controlled  by  locks.  It  had  boats  provided  by  the  State.  Com- 
mercial navigation  on  the  river  practically  ceased.  For  60  years 
(ever  since  1848)  men  have  not  seen  much  commercial  navigation 
on  the  Des  Plaines.  The  men  who  did  see  the  navigation  upon 
the  river  have  died.  A new  generation  has  grown  up  which  has 
not  seen  it ; and  many  of  whom  suppose  that  because  they  have  not 
themselves  seen  it,  it  is  impossible. 

A few  years  later,  in  1853,  the  Chicago  & Rock  Island  Railway 
was  built  parallel  to  the  river  and  canal.  The  three  highways  then 
ran  side  by  side,  and  the  railway  less  swiftly  but  none  the  less 
surely  put  the  canal  out  of  business.  The  IT.  S.  Engineers  Report 
of  1905  states  (House  Document  No.  263,  p.  9)  : “This  canal  has 
lost  its  traffic  to  such  an  extent  that  it  has  ceased  to  produce  a 
revenue  and  is  falling  into  decay  which  bids  fair  soon  to  become 
total.  * * * ^as  intended  to  extend  these  dimensions  of 

waterway  to  replace  the  obsolete  canal. But  the  canal  is  a navi- 
gable waterway,  althougli  sii])ersecle(l,  and  so  is  the  river.  (Al)st., 

p.  1701.) 


V. 


47S 


SUMMAJIY  OF  CANAL  HISTORY. 

(points  DFALT  with  in  the  documentary  history  of  T?IE  ILLINOIS!. 

AND  MICHIGAN  CANAL  CONTAINED  IN  CANAL  COMMISSIONERS^  REPORT 

OF  1900,  WITH  POINTS  FROM  OTHER  SOURCES.) 

The  Canal  Lands — The  Indian  Treaty  Lands. 

In  tlie  Appendix  of  the  Canal  Commissioners’  Report  of  1900  is 
a copy  of  tlie  map  of  Post  and  Paul,  made  in  1824,  entitled,  ‘^Map 
of  that  part  of  the  State  of  Illinois  through  which  it  is  contem- 
plated to  construct  a canal.” 

On  page  62  of  the  Report  of  1900  it  is  stated  that  ‘^This  map  is 
endorsed  date  A.  D.  1824.” 

The  area  shown  on  this  map  by  Post  and  Pant  corresponds  close- 
ly with  the  territory  ceded  to  the  United  States  by  the  Indians  in 
the  Black  Partridge  Treaty. 

That  territory,  it  will  be  remembered,  ceded  a tract  of  land  10 
miles  wide  on  each  side  of  the  Des  Plaines  and  Illinois  from  Fox 
River  to  Lake  Michigan. 

The  description  in  the  treaty  is  as  follows : 

‘‘Beginning  on  the  left  bank  of  the  Fox  River  of  Illinois, 
ten  miles  above  the  month  of  said  Fox  River ; thence  running 
so  as  to  cross  Sandy  Creek  ten  miles  above  its  month;  thence, 
in  a direct  line,  to  a point  ten  miles  north  of  the  west  end  of 
the  portage,  between  Chicago  Creek,  which  empties  into  Lake 
Michigan  and  the  River  I)es  Plaines,  a fork  of  the  Illinois; 
thence,  in  a direct  line,  to  a point  on  Lake  Michigan,  ten  miles 
northward  of  the  month  of  Chicago  Creek;  thence  along  the 
lake,  to  a point  ten  miles  southward  of  the  month  of  the  said 
Chicago  Creek ; thence  in  a direct  line,  to  a point  on  the  Kan- 
kakee, ten  miles  above  its  month;  thence  with  the  said  Kanka- 
kee and  the  Illinois  River,  to  the  month  of  Fox  River;  and 
thence  to  beginning.  ’ ’ 

Blanchard’s  The  Northwest  and  Chicago,  pp.  490-491. 

7 U.  S.  Stat.  at  Large,  pp.  146-147  (Treaty  of  1816,  Ang. 

24). 

This  will  be  found  to  be  exactly  the  territory  delineated  on  the 
Post  and  Pan!  map  from  Lake  Michigan  to  the  Fox  River.  There 


470 


is  an  added  portion  west  ol*  the  h\)x  River  wliieJi  was  not  in  the 
Black  Partri(ige  d^reaty. 


EARLY  CANATi  PKOJEOTS. 

At  the  time  this  treaty  was  made  Congress  had  already  for 
eight  years  been  considering  the  project  of  the  canal. 

his  celebrated  report  on  Means  of  Internal  Communica- 
tion, in  1808,  Albert  Gallatin  gave  a prominent  place  to  the 
project  for  a ship  canal  across  the  Chicago  portage. 

‘Mn  1811  the  Illinois  waterway  was  reported  to  Congress  in 
a bill  along  with  the  proposed  Erie  and  other  canals. 

^‘From  1808  to  1825  the  C^^oposed  ship  canaE  was  repeat- 
edly advocated  by  Clinton  and  Morris  as  an  extension  of  the 
Erie  Canal  to  the  Mississippi  Eiver. 

‘‘President  Madison,  in  his  message  to  Congress  in  1814> 
invites  attention  to  the  importance  of  a ship  canal  between 
Lake  Michigan  and  the  Illinois  Eiver.” 

Eeport  of  Illinois  Internal  Improvement  Commission, 
1907,  p.  7. 

ROUTE  AND  LENGTH  OF  CANAL EARLY  IDEAS  AS  TO. 

It  is  obvious  that  when  this  treaty  was  made  it  was  not  imag- 
ined that  the  canal  would  need  to  extend  west  of  the  Pox  Eiver. 

The  general  state  of  the  best  opinion  on  the  subject  was  that 
the  canal  would  extend  from  Bridgeport  on  the  Chicago  Eiver  to 
the  head  of  Lake  Joliet,  14  miles  above  the  mouth  of  the  Des 
Plaines. 

On  this  subject  H.  E.  Schoolcraft  in  his  ‘‘Travels  in  Central  Por- 
tions of  the  Mississippi  Valley,”  narrating  his  journey  of  1821  as 
Secretary  of  a Treaty  Commission,  and  published  in  1825,  gave  a 
clear  statement: 

SCHOOLCRAFT ^S  BOOK  OF  TRAVELS TITLE. 

“Travels  in  the  Central  Portion  of  the  Mississippi  Valley, 

comprising  observations  on  its  minerals,  geography,  internal 
resources  and  aboriginal  population.  (Performed  under  the 
sanction  of  the  Government  in  the  year  1821.)  By  Henry  E. 
Schoolcraft,  U.  S.  I.  A.,  Honorable  Member  of  the  American 
Geological  Society,  Member  of  American  Antiipiarian  Soci- 
ety, honorable  member  of  New  York  Historical  Society,  cor- 
respondent member  of  New  York  Lyceum  of  Natural  His- 


480 


tory,  eorrespondent  of  tlie  Academy  of  Natural  Sciences  at 
Idiiladelpliia,  etc.  New  York.  Published  by  Collins  & Han- 
nay,  230  Pearl  street,  J.  & J.  Harper,  printers,  1825.  (Abst., 
p.  1053.) 

INDIAN  TITLES PURPOSE  OF  SCHOOLCRAFT  ^S  JOURNEY. 

‘‘The  Government  now  proposed  to  extinguish  the  Indian 
title  to  that  portion  of  the  country  included  between  the  north- 
ern  boundary  line  of  the  State  of  Indiana  and  Grand  River, 
Micliigan,  embracing  in  longitude  all  that  part  of  the  penin- 
sula within  these  boundaries,  which  still  remained  unpur- 
chased.  To  effect  this  object,  his  Excellency,  Governor  Cass 
and  Solomon  Sibley,  Esq.,  were  commissioned  by  the  Presi- 
dent to  meet  the  Indians  in  council  at  Chicago  in  the  summer 
of  1821 ; the  lesult  of  whose  efforts  is  hereafter  to  be  de- 
tailed. Having  been  appointed  to  fill  the  office  of  Secretary 
for  this  commission,  I deem  it  sufficient  here  to  remark  that 
the  following  sketches  have  been  made  under  rather  favorable 
circumstances  during  the  preliminary  tour,  which  it  became 
necessary  to  perform  in  order  to  meet  the  place  of  treaty ; and 
v;lii!e  the  large  concourse  of  Indians  who  were  drawn  together 
on  this  occjision  remained  encamped  in  that  vicinity.  (Abst., 
p.  1053.) 


SCHOOLCRAFT^S  ROUTE. 

“The  usual  route  in  proceeding  to  Chicago  is  either  to  fol- 
low an  Indian  trail  which  leads  out  from  the  source  of  the  River 
Raisin  and  is  computed  to  be  a little  short  of  three  hundred 
miles,  or  by  taking  ship  and  performing  the  voyage  through 
the  lakes  by  way  of  Mackinac,  which  somewhat  more  than 
doubles  the  distance.  But  as  Government  business  requires 
the  presence  of  one  of  the  Commissioners  on  the  Wabash,  it 
was  proposed  to  reach  that  place  by  means  of  the  water  com- 
munication connecting  that  river  with  the  Maumee,  and  after- 
wards to  extend  the  route  into  the  Ohio  and  the  Mississippi, 
and  reach  Chicago  by  following  up  the  Illinois  to  its  source.” 

(Abst.,  p.  1053.) 


THE  DATES  OF  SCHOOLCRAFT  ^S  JOURNEY  UP  THE  ILLINOIS. 

The  l)00k  is  kept  in  the  form  of  a journal  with  dates. 

In  the  preface  he  states  the  trip  is  in  the  summer  of  1821. 

Page  188  of  Schoolcraft’s  book  he  states  the  date  as  July  21  at 
a.hout  Peoria,  en  route  upwards. 


‘IS) 


Pago  21)5  ho  gives  tlie  next  dale  as  ‘Mini  -tilP’  (of  August). 

l^age  »>d7  he  says:  “Coiieil  breaks  up  and  iiuHits  again  on  tlie 
22d  of  August.” 

l/riie  passages  vvhi('li  were  read  in  full,  and  whi('li  nnt  quot(‘d 
a])()ve,  ()('('ur  between  these  dates.  ] 

THE  SCHOOLCRAFT  BOAT  AND  ITS  LOAD. 

‘‘Having  now  briefly  noticed  the  motive  of  the  journey,  the 
objects  proposed  to  be  accomplished  and  the  route  to  be  pur- 
sued, we  shall  conclude  these  preliminary  remarks  with  a 
short  account  of  our  mode  of  traveling;  or,  rather,  as  a slight 
consideration  of  the  nature  of  our  route,  will  lead  the  reader  to 
anticipate  our  traveling  canoe.  In  its  dimensions  a 
choice  was  made  between  Hie  long  and  ])ointed  north- 
west canoe  employed  in  the  fur  trade,  and  the  light  ovate 
canoe  of  the  lakes;  combining  in  a good  degree  the  strength, 
the  buoyancy  and  the  velocity  which  are  the  peculiar  char- 
acteristics of  each.  And  our  bark  afforded  perhaps  an  ecpiit- 
able  standard  of  comparison  of  the  safety  and  convenience  of 
this  expeditious,  and,  as  we  think,  pretty  mode  of  voyaging. 
It  was  furnished  with  a small  mast,  and  square  sail,  and  an 
awning  of  painted  cloth,  with  side  curtains  to  intercept  the 
rain  and  mitigate  the  heat,  and  contained  seats  for  six  men 
to  paddle,  and  another  for  a servant  and  cook,  in  addition  to 
the  space  for  the  steersman,  who  performs  his  duties  stand- 
ing.” (Nine  employes  besides  the  three  men,  Cass,  Sibley 
and  Schoolcraft,  constituted  the  commission.)  “Our  own  seats 
were  made  by  opening  a traveling  bed  upon  the  light  portable 
floor  ])laced  between  the  center  thwarts  of  the  canoe,  and  so 
arranged  as  to  serve  the  double  purpose  of  sitting  and  reclin- 
ing— or  rather  so  as  frequently  to  keep  the  body  in  a state  of 
involuntary  accubation.  Our  whole  amount  of  personal  bag- 
gage, beside  a camp  bed  and  a case  of  books  and  magazines, 
might  have  been  compressed  within  the  compass  of  a moder- 
ately capacious  traveling  trunk;  and  our  outfit  of  provisions 
and  the  luggage  of  the  canoemen  were  ordered  with  the  same 
economic  view  to  the  capacity  of  our  barge  and  the  accelera- 
tion of  its  movements.  A linen  marque,  a few  instruments 
necessary  for  making  observotions  u])on  such  branches  of 
science  as  ,we  })roHOscd  noticing,  tlie  tools  and  utensils 
necessary  for  cooking  and  encampment,  and  the  requisite 
gum  and  wattap  for  repairs  to  the  canoe,  completed  the  outfit. 
An  oil  cloth  which  could  be  spread  in  a few  moments  over  all, 
secured  the  packages  against  sudden  showers  oi*  the  effects  of 

waves  breaking  in.  (Abst.,  ]>.  1054.) 

* * * * * * * * * 


4Sl> 


THK  VKItM  ILION  IIAPIDS  PKEVKNT  U P-SI'RKAM  NAVIGATION  OF  THE 

ILLINOIS  IN  AUGUST. 

two  o’('Ioek  we  reaelied  the  moutli  of  the  Vermilion,  a 
fine,  (‘l(‘ar  stream  (mt(‘ring'  on  the  left  liaiik.  This  iioiiit  is 
estimated  to  1)(‘  eijiii-dfstaiit  hetweim  (liieag'o  a.nd  Fort  (hark, 
it  Ixhiio'  ninety  miles  either  way.  hhi(‘  rapids  eommeneed 
half  a mile  above  which  eonneets  it  witli  the  Illinois, 
and  is  greatly  diminished  in  size  above  the  junction  of 
the  Vermilion.  The  water  at  once  becomes  shallow  and  the 
rock,  which  is  sandstone,  presents  itself  first  in  broken  masses 
and  soon  after  flooring  the  bed  of  the  river.  AVhen  our  canoes 
would  no  longer  float  without  rubbing  against  the  rocks  we 
got  out  and  made  a short  portage.  The  empty  canoes  being 
still  guided  along  by  men  walking  in  the  stream  on  each  side. 
When  we  again  embarked  we  could,  however,  go  Imt  a very 
short  distance.  Another  portage  was  necessary.  In  short, 
we  could  no  longer  proceed  in  our  water  craft.  Nothing  but 
a series  of  rapids  appeared  above  as  far  as  we  could  explore. 
The  water  was  scarcely  eight  or  ten  inches  deep  in  any  place 
and  often  less  than  four.  With  great  exertions  we  had  pro- 
ceeded two  or  three  miles  above  the  Vermilion  and  about  four 
o’clock  we  encamped  near  a remarkable  isolated  hill  called  by 

French  voyagers  Le  Rocher  and  Rock  Fort. 

* * * * * * * * * 

(Abst.,  p.  1049.) 


USE  OF  HORSES  FOR  JOURNEY  UPWARDS  FROM  STARVED  ROCK  TO 

RIVERSIDE. 

‘^Finding  navigation  so  difficult  we  determined  to  relin- 
quish the  design  of  proceeding  any  farther  by  water,  but  to 
await  the  arrival  of  horses  from  Chicago  which  had  been  or- 
dered to  meet  us  near  this  place  on  the  10th”  (of  August, 
1821.)  man  Was  sent  by  land  to  Reddick’s  deposit.  He 
returned  at  a seasonable  hour  on  the  following  day,  having 
found  horses  in  waiting.  Having  made  the  necessary  arrange- 
ments for  continuing  our  voyage  by  land,  we  left  our  canoe 
men  in  charge  and  we  mounted  our  horses  at  ten  o ’clock  in  the 
morning  and  pursued  the  journey  in  renovated  spirits. 

* * * * *'#*'*  iff  * * * 

(Abst.,  p.  1049.) 


THE  DETOUR  TO  THE  MOUTH  OF  DES  PLAINES  TO  PETRIFIED  TREE, 

At  nine  o’clock  in  the  morning  we  came  to  a part  of 
the  country  which  is  contiguous  to  the  Des  Plaines  and  to  tlm 
Kankakee,  two  considerable  streams,  which  by  their  junction 
form  the  Illinois.  Here  our  party  halted  to  allow  an  oppor- 


4h:\ 


iiinily  of  (‘xnniiniiio”  an  ohjcu-l  llial  had  Ixuni  (l(‘S(‘i-il)(!(l  to  us  as 
l)(‘ini>'  0110  wlii('h  was  (aikailatod  to  oxoiU^  our  ouriosity. 
persons  ot*  observation  have  probably  pass(‘d  throngli  tin;  Iiivcn* 
Des  Plaines  without  devoting  some  attention  to  the  petrihcMl 
tree.  (Abst.,  ]).  1050.) 

*********** 

PETRIFIED  TREE  IN  BED  OF  STREAM,  THREE  FEET  THICK,  TWELVE  TO 
TWENTY  INCHES  OF  WATER  OVER^  IT. 

‘‘  * * * which  is  exposed,  according  to  our 

measurement,  is  51  feet  and  a few  inches,  and  its  diameter  at 
the  largest  end  three  feet.  But  there  is,  apparently,  a con- 
siderable portion  of  its  original  length,  concealed  in  the  rock. 
We  broke  up  from  the  bed  of  the  river,  a number  of  large 
pieces.  We  were  careful  to  choose  them  from  a part  where 
the  rocks  still  rest  upon  them,  and  consequently  no  abrasion 
of  the  outer  part  of  the  mass  had  taken  place.  This  rock  is  a 
species  of  recent  sandstone,  not  essentially  different  from 
that  which  pervades  a considerable  area  near  the  source  of  the 
Illinois.  The  depth  of  water  on  the  rock  was  commonly  little 

more  than  12  inches.  (Abst.,  p.  1055.) 
*********** 

‘^Thomas  Tousey,  Esq.,  of  Virginia,  who  visited  this  local- 
ity in  the  autumn  of  1822’’  (a  period  of  low  water)  ‘‘found 
nearly  the  same  depth  of  water  in  the  Djes  Plaines.  He  writes : 
‘With  your  memoir  in  my  hand,  we  rode  up  and  down  the 
river,  till  the  pursuit  was  abandoned  by  the  others ; while  my 
own  anxiety  and  zeal  did  not  yield  until  it  was  discovered. 
The  detached  pieces  we  found  covered  with  12  to  about  20 
inches  of  water,  and  each  of  us  broke  from  them  as  much  as 

we  could  well  bring  away.’  (Abst.,  p.  1056.) 

* * * * * * * * * * * 

THE  RIVERSIDE  FORD DESCRIPTION  OF  THE  ILLINOIS. 

(The  Schoolcraft  map,  put  as  evidence.  Atlas  3961,  shows 
that  the  ford  was  at  Riverside  at  the  point  marked  by 
the  Surveyor  in  1821  as  “Head  of  Navigation.”) 

“About  ten  o’clock  in  the  morning  we  reached  the  ford  of 
the  Des  Plaines.  We  found  the  river  about  thirty  yards  wide 
and  the  depth  of  the  water  two  feet.  Between  this  place  and 
the  Vermilion,  where  we  left  the  Illinois,  we  have  seen  the 
river  but  seldom,  although  our  route  has  been  for  the  greater 
part  upon  its  banks.  We  have,  however,  seen  its  channel  at 
a sufficient  number  of  points  to  determine  that  it  has  several 
long  and  formidable  rapids  which  completely  intercept  naviga- 
tion at  this  sultry  season. 


484 


]»J{01’()SEL)  CANATj LENGTH  OF  PORTAGE  CHICAGO  TO  MOUNT  JOLIET 

THIRTY  MILES. 

“A  remark  that  has  been  eonfirmed  by  meeting  several 
traders  on  the  ])lains  who  bad  trans})orted  their  goods  and 
boats  in  (*arts  from  (diieago  (Ireek,  and  who  informed  us 
they  tlionght  it  praetic'able  to  enter  tlie  Illinois  at  Mount  Joliet. 
This  would  lengthen  the  ])ortage  to  about  80  miles,  but  it  has 
been  perceived  that  we  ex])erienced  difficulties  far  below  this 
Inst  mentioned  ])oint.  This  fact  is  sufficient  to  show  the  error 
of  those  who  have  sup])osed  that  a canal  of  only  eight  or  ten 
miles  would  he  necessary  to  provide  navigation  between  Lake 
Michigan  and  the  Illinois.  A canal  of  this  length  would,  indeed, 
])rovide  communication  which  already  exists  at  certain  seasons 
between  diicago  Lreek  and  the  Des  Plaines  but  must  fall  far 
short  of  the  grand  purpose. 

*********** 

(Abst.,  p.  1050.) 

‘^AVe  are  indebted  to  a gentleman  of  correct  observation 
who  has  explored  the  route  with  particular  reference  to  the 
subject  of  a canal  for  the  following  information  respecting 
those  parts  of  the  bed  of  the  Illinois  and  Des  Plaines,  which 
we  have  not  personally  examined.  (Abst.,  p.  1050  ) 

‘‘The  computed  distance  from  the  ford  of  the  Des  Plaines 
to  its  connection  with  the  Kankakee  is  about  45  miles.  Fif- 
teen miles  of  this  distance  consists  of  Lake  Joliet,  and  the 
remainder  is  almost  eciually  divided  between  ripples  and  still 
waters.  (Abst.,  p.  1050.) 

(It  will  be  noted  that  the  author  here  states  that  the  distance 
from  the  ford  of  the  Des  Plaines  to  the  confluence  with  the  Kanka- 
kee is  45  miles,  and  that  the  portage  was  lengthened  to  30  miles, 
leaving  an  estimated  15  miles  for  use  of  river.  Mount  Joliet  in 
fact  is  shown  by  the  testimony  of  Flanders  and  others  to  have 
stood  at  the  head  of  Lake  Joliet,  in  fact  about  11  miles  above  the 
confluence.  In  other  words,  the  summer  portage  extended  and  the 
proposed  canal  was  to  extend  into  Lake  Joliet,  below  the  Joliet 
slope.) 

RAPIDS  IN  THE  ILLINOIS RIVERS  SHOULD  FEED  CANALS. 

“The  next  obstruction  occurs  at  the  Kickapoo  Rapids’’  (in 
the  Illinois  River)  “which  have  a fall  of  perhaps  six  feet  in  a 
distance  of  a mile  and  a quarter.  But  this  yields  in  importance 
to  the  Rock  Fort  rapids,  which  are  commonly  computed  to  be 
24  miles  long.  The  total  fall  of  the  river  in  this  distance  can- 
not be  less  than  35  or  40  feet.  The  Illinois  in  passing  these 


4s:) 


rapids  spi-oads  ovor  a wide  sur’fac'e  and  was  r-(‘dii(‘(Hl  lo  a 
de})tli  of  a few  inches,  lieiUH^  it  has  h(‘(ni  said  lliat  by  cutting  a 
channel  in  the  r()(*k  so  as  to  coiu'entrate  the  volinn(‘  a,  ^ood  and 
sii(li(*ient  navigation  wonid  he  afforded  for  boats  of  eight  oi-  ten 
tons  burden.  By  a similar  labor  the  wliole  seri(is  of  ra[)ids 
could  he  init)roved  and  at  })erhaps  comparatively  small  ex- 
l)ense.  l>iit  it  may  be  a (piestion  whether  this  s})ecies  of  snc- 
cedaneous  canal  ling  as  calculated  would  answer  any  availaf)le 
purpose.  We  believe  experience  has  proved  it  clieaper  in  the 
end  to  open  an  entirely  new  cliannel  than  to  im])rove  the  nat- 
ural bed  of  a shallow  or  rapid  stream,  of  one  that  is  subject 
to  sudden  fluctuation  from  vernal  or  autumnal  freshets.  This 
appears  fo  be  llie  ])roper  construction  and  a])plicable  to  the 
)t()])le  idea  of  the  celebrated  Brindley,  'that  streams  irere  only 
made  to  feed  canals' — the  principle  of  v/liich,  so  far  as  we  are 
capable  of  judging,  appears  to  he  adopted  by  modern  engi- 
neers, and  has  been  particularly  riaidly  a])plied  in  the  exist- 
ence of  the  Erie  Canal.  (Abst.,  ]).  1051.) 
*******#### 


SCHOOLCEAFT NAVIGATION  DIFFICULTIES NO  HAKBOE  AT  CHICAGO. 

‘‘There  is  another  point  of  inquiry  connected  with  this 
canal,  which  appears  to  have  been  too  generally  overlooked, 
but  which  may,  perhaps,  oppose  serious  difficulties  to  the  work. 
We  allude  to  the  formation  of  a harbor  on  Lake  Michigan 
where  vessels  may  lie  in  safety  while  they  are  discharging  the 
commodities  destined  for  the  Illinois,  or  encountering  the  de- 
lays which  commerce  fre(]uently  imposes.  Tt  is  well  known  that 
after  passing  the  Manitou  Islands  there  is  no  harbor  or  shel- 
ter for  vessels  in  the  southern  part  of  Lake  Michigan ; and  that 
every  vessel  which  passes  into  that  lake  after  the  month  of 
Septenilier  runs  un  imminent  hazard  of  shipwi'eck.  The  ves- 
sels bound  to  Clucaiao  come  to  aiudior  lupon  a gravelly  bottom 
in  the  lake,  and  disCiarging  Vvdth  all  possible  speed,  hasten 
on  their  return.  (Abst.,  p.  lOob.) 

BAR  AT  MOUTH  OF  CHICAGO  ElVEE. 

“The  sand  wdiich  is  driven  up  into  the  mouth  of  (Chicago 
Creek  will  admit  boats  only  to  ])ass  over  the  bar,  though  the 
water  is  deep  enough  to  allow  vessels  to  lie  above.  Among  the 
expedients  which  have  been  proposed  for  keeping  the  mouth 
of  this  creek  clear  of  sand,  one  of  the  most  ingenuous  and  per- 
haps practicable,  is  that  of  turning  the  Konomic,  by  a canal  of 
16  miles,  into  the  Chicago,  above  the  fort,  and  by  the  increased 
body  and  ])ressure  of  the  water  to  drive  out  the  accumulated 
sands.  It  is  somewhat  ])robleniatical  whether  a safe  and  ])er- 
manent  harbor  can  be  constructed  by  any  effort  of  human  in- 
genuity, upon  the  bleak  and  naked  shores  of  these  lakes,  ex- 


l)()se(l  as  they  are  to  the  most  furious  tempests.  And  we  are 
iiielined  to  think  it  would  be  feasible  to  construct  an  artificial 
island  off  the  mouth  of  Chicago  Creek  which  might  be  con- 
nected by  a bridge  with  the  main  land,  with  more  permanent 
benefit  to  the  country  at  large,  if  not  with  less  expense,  than  to 
keep  the  Chicago  clear  of  sand.  Stone  for  such  a work  is 
abundant  near  the  entrance,  in  the  Green  Bay,  and  if  built  on 
a scale  sufficiently  liberal,  it  would  afford  convenient  sites  for 
i\\\  the  storehouses  recpiired.  (Abst.,  ])p.  1056-7.) 
*********** 

LOCATION  OF  CANAL CANAL  REPORT  OF  1875. 

The  map  by  Paul  and  Post  gave  several  alternative  routes,  con- 
cerning which  they  said : 

‘^Vandalia,  3d  January,  1825.  To  the  Speaker  of  the  House 
of  liepresentatives : Sir: 

“ The  Canal  Commissioners  have  the  honor  to  enclose  the  re- 
])ort  required  by  an  ‘Act,’  &c.,  accompanied  by  the  report  of 
the  engineers  to  them  with  the  maps,  plans  and  documents  re- 
lating thereto.  (Abst.,  p.  1067.) 

*********** 

THE  PAUL  AND  POST  SURVEY. 

“That  pursuant  to  instructions  from  the  Commissioners, 
they  proceeded  with  two  companies,  one  to  Chicago  on  the 
shore  of  Lake  Michigan,  and  the  other  to  the  rapids  of  the 
Illinois  River,  with  a mutual  understanding  result- 
ing from,  a cursory  examination  of  the  topography  of  the  coun- 
try, made  in  the  autumn  of  1823,  to  confine  the  operations  of 
leveling  to  the  north  side  of  the  Rivers  Illinois 
and  Aux  Plaines  and  in  the  valleys  of  those  rivers,  in  conse- 
quence of  which  the  party  at  Chicago,  after  sounding  the  lake 
near  the  shore,  and  sounding  and  meandering  the  Chicago 
River  to  its  head  (the  waters  of  which  were  found  stagnant 
and  on  a level  with  the  water  of  Lake  Michigan)  proceeded 
leveling  in  the  direction  to  the  Ford  of  the  Des  Plaines,  where 
they  crossed  that  stream  and  descended  on  the  north  side  in 
its  valley,  until  the  two  companies  intercepted  each  other  in 
the  front  of  Mount  Joliette.  (Abst.,  p.  1073.) 

OBJECTS  AND  CHARACTER  OF  THE  SURVEY A PRELIMINARY  WORK. 

“The  object  of  this  tour  being  to  ascertain  the  inclination 
of  an  imaginary  plane  drawn  from  the  surface  of  the  water  in 
Lake  Michigan  to  the  surface  of  the  water,  at  some  convenient 
point  on  the  Illinois  River,  below  the  Rapids,  and  to  consider 
the  practicability  and  probable  expense  of  constructing  a canal 
connecting  those  points,  the  undersigned  have  confined  them- 


487 


selves  no  further  to  location  than  nierely  to  designate  the  two 
extreme  points,  the  head  of  the  (hiic'ago  lliver  being  one  and 
the  confiuenee  of  the  Little  Vermilion  and  tlie  'Illinois  being  the 
other,  the  deptli  of  the  water  between  this  point  and  the  raf)ids 
being  insufficient  for  the  purposes  of  navigation,  and  the  na- 
ture of  the  adjoining  shores  of  the  rivers  being  unfavorable  for 
the  object  re([uired,  it  was  deemed  advisa})le  to  de- 
scend to  this  point  (a  few  miles  below  the  foot  of  the 
rapids),  where  a convenient  and  safe  location  of  the  junction 
of  the  canal  with  the  river  may  be  had ; it  being  near  the  bluff, 
and  having,  in  its  immediate  vicinity,  but  a small  strip  of 

ground,  at  any  time,  subject  to  inundation.  (Abst.,  pp.  1078-4.) 
* * * * * * * * # 

DESCRIPTION  OF  DIFFERENT  ROUTES. 

‘ ‘ What  the  undersigned  denominate  different  routes  are  the 
variations  which  may  be  given  to  the  upper  part  of  the  route 
lying  between  the  head  of  the  Chicago  Eiver  and  a point  in  the 
River  Des  Plaines,  near  the  head  of  He  a la  Cache,  or  Cache 
Island.  Prom  this  point  to  the  mouth  of  the  Little  Vermilion 
all  the  routes  are  the  same  excepting  in  that  from  A to  H,  by 
which  it  is  contemplated  to  use  the  water  of  Lake  Michigan 
alone  for  a feeder.  By  this  route,  after  passing  the  Riyer  Ties 
Plaines  by  an  aqueduct  at  H,  the  canal  will  communicate  with 
the  principal  line  at  K,  and  thence  proceed  to  the  mouth  of  the 
Little  VhuTiiilion.  To  avoid  tautology  and  circumlocution  in 
our  subse{juent  obsecvalions,  relatively  to  the  variations  here 
indicated,  we  will  denominate  the  route  from  the  head  of  the 
(Iiicago  by  the  Ford  of  Anx  Plaines  at  B and  thence  by  K to 

be  the  first  route.  (Alist.,  p.  1079.) 
*********** 

DIMENSIONS. AMOUNT  OF  WATER  DEMANDED  BY  CANAL. 

‘‘In  the  first  place,  assuming  the  dimensions  of  the  locks  as 
we  have  shown,  to-wit:  76  feet  long  and  14  feet  wide,  having 
straight  and  perpendicular  sides,  and  supposing  the  canal  to  be 
full,  the  passage  of  each  boat  will  require  8,512  cubic  feet  of 
water.  Then  if  we  suppose  the  time  recpiired  for  filling  and 
discharging  the  lock  and  passing  the  boat,  to  be  15  minutes, 
we  shall  require  for  both  branches  of  the  canal,  emanating 
from  the  reservoir  to  the  ford,  68,096  cubic  feet  in  an  hour.  To 
this  expense  must  be  added  the  water  lost  by  evaporation, 
leakage  and  absorption.  * * * We  shall  have  for  an  hourly 

aggregate  demand  74.520.2  cnliic  feet.  (Abst.,  })p.  1087-8.) 

THE  ADEQUACY  OF  THE  DES  PLAINES  AND  ITS  TRIBUTARIES. 

“Now,  as  the  River  Des  Plaines  has  been  ascertained  to  fur- 
nish in  each  hour  72,000  cubic  feet,  and  if  we  add  to  this  1,000 


I'ecit  vvliK'li  tli(‘  i>a(‘k  de  la  Pointe  Aux  (dieiios  is  supposed 
(‘apal)l(‘  of  riirnishin^  in  an  hour,  and  '22y)i)i)  (*u})ie  feet  which 
it  is  supposcid  may  })e  drawn  from  the  spring  })rooks  to  he  met 
with  on  the  route  between  tiie  Ford  and  Caclie  Island  (it  f)eing 
lialf  the  a(‘('ession  found  })etween  those  two  })oints)  and  (),(}00 
('ul)i(‘  feet  iXM'eivahle  through  otlier  small  streams,  between 
(ku'lie  Island  and  the  Du  Page,  we  sliall  have  an  hourly  fund 
of  10 1,000  ('u])ic  feet;  hence  the  i)rol)able  liourly  surplus  of 
water  on  this  route  may  ])e  estimated  at  20,980,  or,  in  round 
numbers,  say  27,000  cubic  feet.  (A})st.,  p.  1088.) 

“Tlie  distaiK'e  above  examined  is  the  only  ])art  of  tlie  route 
on  whic'li  the  least  a])])rehension  of  deficiency  of  water  can  ex- 
ist, for  tlie  Du  Page,  furnishing  114,000  cubic  feet,  * * * 

give  i)ositive  assurance  of  an  abundant  supply  for  the  re- 
maining part  of  the  route.”  (Ahst.,  ]).  1088.) 

( Lt  will  be  observed  that  this  report,  which  was  communicated 
to  the  Legislature  in  January,  1825,  reports  the  work  done  in  the 
autumn  of  1824.  The  passage  most  relied  on  by  the  defense  states 
the  following)  : 

‘‘The  undersigned  have  confined  themselves  no  further  to 

location  than  merely  to  designate  the  two  extreme  points,  the 
head  of  the  Chicago  Piver  being  one  and  the  confluence  of  the 
Little  V ermilion  and  the  Illinois  being  the  other,  the  depth  of 
water  between  this  point  and  the  rapids  being  insufficient  for 
the  purposes  of  navigation.”  (Abst.,  p.  1074.) 

‘^This  point’ ^ is  the  confluence  of  the  Little  Vermilion  and  the 
Illinois;  and  the  parenthetic  suggestion  by  the  surveyors  on  what 
they  call  “a  cursory  examination,”  is  that  the  depth  in  the  Illinois 
Piver  between  those  two  points  was  insufficient  for  navigation. 
This  is  the  point  where  the  Illinois  Piver  spreads  out  exceedingly 
wide  and  shoal  by  reason  of  the  bar  at  the  mouth  of  the  Little  Ver- 
milion. This  is  the  bar  marking  the  point  at  which  Patrick  Ken- 
nedy left  the  river  in  1773,  which  he  described  August  9,  1773,  as 

“Sixty  miles  from  the  forks  (of  the  Des  Plaines  and  Kan- 
kakee) and  270  miles  from  the  Mississippi.”  (Imlay,  p.  510.) 
(A])st.,  }).  940.) 

This  is  the  point  where  Schoolcraft  left  the  Illinois  Piver  in 
August,  1821.  (Abst.,  ]).  1C50.) 

This  is  sixty  miles  west  of  the  forks,  aud  the  phrase  that  there 
is  insufficient  depth  for  navigation  at  that  point  has  nothing  to  do 
with  the  depth  of  water  in  the  Des  Plaines.  There  may  be  ten 
times  the  amount  of  water  in  the  Illinois  at  that  ])oint  that  there 


481) 


is  at  the  Des  IMaiiios,  and  yet  it  he  so  s[)j'ea(l  out  ()V(*r  the  slionis  as 
to  be  less  than  six  iin'lies  deej).  Sehooh'raft  descn-ihes  it  in  the 
passage  (jnoted  above  as  ‘‘scarcely  eight  or  ten  inches  decip  in  any 
place,  and  often  less  than  four/’  while  he  descri})es  the  Des  Plaines 
as  two  feet  deep  at  tlie  ford,  and  from  12  to  20  inches  deep  nt  the 
site  of  this  dam,  over  the  top  of  the  submerged  tree,  which  was 
three  feet  thick  as  it  lay  on  the  rocky  bed  of  river.  (Abst.,  p.  1041); 
Abst.,  p.  1056.) 

The  bar  itself  is  shown  on  “Cooley  Exhibit  29,”  Atlas,  p.  8972, 
(Abst.,  }).  1982),  being  the  profile  of  the  np])er  Illinois  valley  from 
Joliet  to  Henry.  At  the  mouth  of  the  A'ermilion  Kiver  the  bar 
formation  is  shown  extending  out  into  the  Illinois  River,  so  that 
the  channel  itself  is  recjuired  to  form  a letter  S Vvnnding  l)ack wards 
and  forwaids  between  the  banks. 

The  phenomenon  of  a bar  at  the  mouth  of  a tributary  stream  is 
universal.  It  appears  in  the  evidence  that  a similar  bar  was  formed 
in  the  Des  Plaines  by  the  sediment  dropped  by  the  conflict  of  cur- 
rents at  the  mouth  of  the  DuPage,  and  that  a much  more  serious 
bar  still  was  formed  at  the  mouth  of  the  Chicago  River  by  the  de- 
posit of  sediment  at  the  meeting  of  the  rivei-  water  with  that  of 
the  lake. 

This  is  the  same  phenomenon  which  caused  a delta  at  the  mouth 
of  the  Mississippi  and  of  the  Nile  and  at  the  mouth  of  all  tributary 
streams.  It  means  that  the  sediment  and  alluvium  washed  down 
by  the  stream  when  it  reaches  the  point  of  the  mouth  where  the 
current  ceases,  is  let  fall  and  forms  the  bar.  It  is  what  this  Court 
had  in  mind  when  it  said  in  the  179  111.,  214,  at  page  284,  that 

“The  Illinois  River,  while  it  is  a navigable  water,  is  also 
the  natural  outlet  for  the  drainage  of  a large  territory,  with 
many  other  rivers  and  streams  emptying  their  waters  into  and 
flowing  through  its  channel.  * * * ()f  these  rivers  and 

creeks,  and  of  the  fact  that  they  carry  large  (juantities  of  sand, 
sediment  and  debris  into  the  Illinois  river,  and  have  for  ages, 
the  courts  will  take  notice,  and  that  still  the  Illinois  River  is  a 
navigable  river.” 

The  Illinois  is  a navigable  stream,  although  it  has  the  im])assable 
Vermilion  Rapids,  Grand  Rapids  and  Kickapoo  Rapids;  and  al- 
though crossed  by  numerous  bridges,  and  dammed  at  Marseilles. 


490 


(’ANAL  HISTOKV LOST  OK  SLKVEV N E(iOTl ATIONS  WITH  FEDERAL  (GOV- 

ERNMENT. 

Pnges  (iO  to  I'l  of  the  (4inal  ( Viiniiiissioiier ’s  Re])ort  for 
1000  narrate  the  negotiations  between  the  State  an<4  Fed- 
eral ({ovei  nnient  and  the  a(R'onnt  of  the  preliminary  sur- 
vey. From  this  it  ap])ears  that  Mr.  Post  was  paid  $825 
Seven  assistants  were  paid  amounts  aggregating  $173.56  for  work 
on  the  survey;  that  Commissioner  Erastus  Brown  was  paid  $225 
for  his  labors,  and  that  an  act  was  passed  for  the  relief  of  Eene 
Paul  and  others,  by  which  Paul  was  paid  $480,  and  the  others  were 
paid  in  all  $237.  This  survey,  therefore,  cost  $1,440.56.  The  Paul 
and  Post  survey  was  not  regarded  as  conclusive  of  anything.  Its 
authors  had  not  the  necessary  experience.  This  survey  was  de- 
scribed by  Governor  Edwards  to  the  Secretary  of  War,  thus: 
(Canal  Kep.,  1900,  p.  71.)  (Trans.,  p.  6375.) 

^Wopy  of  letter  from  Governor  Edwards  to  the  Secretary 
of  War. 

Executive  Department,  State  of  Illinois, 
^^28th  January,  1828. 

‘^Sir:  As  the  Legislature  of  this  State  will,  doubtless,  at  its 
next  session,  make  provision  for  commencing  the  canal,  to  con- 
nect the  waters  of  the  Illinois  River  and  Lake  Michigan,  I beg 
leave,  on  behalf  of  the  State,  to  request  that  a survey  of  a 
proper  route  for  it  may  be  made  by  some  competent  offlcer  or 
officers  of  the  Engineer  department  of  the  United  States. 

survey  has  already  been  made  under  the  authority  of  this 
State,  but  as  the  engineers  employed  were  without  the  benefit 
of  that  practical  experience^  which  the  great  importance  of  the 
object  should  command;  and  as  the  United  States,  retaining 
every  alternate  section  of  land  through  which  the  canal  is  to 
pass,  have  a direct  interest  in  its  judicious  execution,  in  refer- 
ence to  the  public  domain ; the  measure  solicited  seems  not  less 
demanded  by  the  interest  of  the  United  States,  than  to  this 
State,  and  therefore  I permit  myself  to  hope  it  will  be 
adopted.” 

The  Secretary  of  War  replied,  February  18,  1878,  consenting 
for  the  War  Department,  to  detail  an  engineer,  if  Congress  should 
empower  him  so  to  do,  to  make  such  further  survey.  (C.  Rep.,  72.) 

From  this  it  appears  that  the  survey  was  of  a primitive  and 
tentative  character. 


OF  THF  (^ANAl.. 


V.)] 


l^igos  7o  to  75  ooTitaiii  the  report  of  Deeeniber  1 8,  1 880,  })y  J.  M. 
Buoklin,  engineer.  (Abst.,  p.  1855.)  He  deseribes  the  i'ont(^  as 
following  the  Cliic'ago  River,  tlie  niai'gin  of  Portage  Lake,  sti'iking 
the  Des  l^laines  River  at  the  Riverside  ford,  following  the  fiver’ 
down  to  the  Ansoganasbkee  swamp,  wliere  the  Sag  puts  in,  the 
erossing  of  which  he  says  will  be  very  ex})ensive  and  jrroposes  us- 
ing tire  Calumet  as  a feeder,  saying: 

‘‘The  Kiver  Des  Plaines  when  low  affords  a very  inconsider- 
able quantitv  of  water.”  (Canal  Rep.,  p.  74.)  (Abst.,  p. 
1856.) 

The  report  of  the  Canal  Commissioners  of  December  27,  1830, 
occupies  pages  75  to  80  and  deals  with  the  selection  of  lands  under 
the  United  States  grant,  the  platting  of  Chicago  and  selling  of  lots 
there  and  predicts  that  the  remaining  lots 

“would  with  proper  care  and  management  yield  a very  hand- 
some inciease  to  the  canal  fund”  (Ibid.,  77).  (iVbst.,  p. 
1857), 

and  urges  the  construction  of  a safe  harbor  at  the  mouth  of  the 
Chicago  River.  It  further  discusses  the  cost  of  the  canal,  finds 
that  it  will  exceed  one  and  one-half  million  dollars  unless  the  resort 
to  the  Calumet  and  the  Sag  as  a feeder  is  adopted,  by  which  the 
first  18  miles  will  be  reduced  to  $160,000.  Page  82  is  occu})ied  by 
an  account  of  a federal  survey  being  made  by  Dr.  Howard  and 
other  engineers.  This  is  followed  by  the  statement  on  ])age  82 : 

“Charles  Dunn,  the  Commissioner  who  remained  at  Chi- 
cago, engaged  Mr.  1.  M.  Buckley,  a scientific  and  practical 
engineei  from  the  Miami,  Louisville  and  Portland  (hinal,  and 
Colonel  Samuel  Alexander,  a skillful  surveyor,  determined 
under  all  circumstances  to  commence  de  novo  and  survey,  level 
and  stake  out  and  permanently  locate.  On  the  20th  of  October 
the  Commissioners  and  ])arty  left  Chicago  to  perform  this 
labor  and  returned  November  12th  following.”  (Trans.,  p. 
6380.) 

To  this  de  novo  location  these  engineers  devoted  tu'enty-one  days. 

n FG I ST.  A I O N - — R A 1 1 . H O A I ) \U:  H S U S C A N AT. . 

In  1831  the  legislature  passed  an  act  to  jTrovide  for  the  construc- 
tion of  the  canal,  and  authorized  the  Commissioners  to  em})loy  an 
engineer  to  ascertain 

“whether  the  construction  of  a railroad  is  not  preferable,  or 
will  be  of  more  public  utility  than  a canal.” 


41)2 


\ 


Noveinher  22,  1S2)1,  A(4in^  CV)inmLssioner  Dunn  reported  against 
tile  canal  and  in  favor  of  tlie  railroad,  (p.  80.)  This  was  con- 
('iiri'CMl  in  by  tin'  Dresidcnit  of  the  l>oard.  (Abst.,  p.  1859.) 

WA'PEH  suinn.Y. 

lieport  of  Engineer  Bucldin,  January  1,  18-)2). 

lie  finds  (p.  88)  tliat  after  using  the  Calumet  the  canal  will  need 
“;in  additional  sujip’v  of  102,400  cnbi(‘  feet  per  hour”  (Abst., 

p.  1800), 

and  says : 

“The  Diver  Des  Plaines,  in  most  seasons,  u'()uld  alone  make 
np  the  deficiency,  but  in  the  fall  of  1830  {a  season  of  extreme 
drought)  its  discharge  was  at  one  period  reduced  to  00,000 
feet  per  liour.”  ([>.  88.)  (Abst.,  ]).  1800.) 

RESERVOIRS. 

Engineer  Bucklin  proposes  using  the  Ausoganashkee  swamp  as 
a reservoir 

^^as  it  receives  the  drainage  of  the  countrv  to  a great  extent.” 
(p.  88.)  (Abst.,  p.  1800.) 

This  drainage  of  the  country  to  a great  extent  by  this  great 
swamp  which  originally  fed  into  the  Des  Plaines  was  here  planned 
to  be  cut  off  from  the  Des  Plaines  and  used  as  a reservoir  to  feed 
the  canal.  It  was  indeed  cut  off  from  the  Des  Plaines  and  the  river 
de])leted  to  that  extent. 


USE  OF  FEEDERS. 

Engineer  Bucklin  then  discusses  the  use  of  various  streams  as 
feeders  and  estimates  the  Du  Page  Eiver  as  discharging  into  the 
Des  Plaines  415,000  cubic  feet  per  hour,  at  a point  3.07  miles  above 
the  mouth  of  the  Kankakee.  (Canal  Eep.,  p.  89.)  (Abst.,  p.  1801.) 

The  size  of  the  Des  Phiines  for  the  3 2-3  miles  from  the  mouth  of 
the  Du  Page  to  the  site  of  the  proposed  dam  is,  therefore,  the  size 
of  the  Des  Plaines  as  it  was  at  the  mouth  of  the  Du  Page  plus 
415,000  cubic  feet  per  hour,  or  7,000  cubic  feet  per  minute,  added 
to  the  2,000  feet  per  minute  of  the  Des  Plaines  in  ordinary  stages 
and  1,000  cubic  feet  per  minute  in  the  dryest  season  and  the  lowest 
stage. 


It  was  contra  tliat  the  figure  Tor  the  Du  was  a uiis- 

priiit  for  115,000  cubic  feet  per  hour,  corresponding  to  tlie  Paul 
and  Post  figure  thereon  of  114,000  cu!)ic  feet,  which  would  amount 
to  1,01()  feet  per  minute,  to  be  added  to  the  upper  Des  Plaines,  with 
its  2,000  ordinary  and  1,000  minimum,  wliicli  together  would  make 
0,91  ()  feet  at  the  site  of  the  dam. 


DES  PLAINES  VALLEY DTFFKmLTIES  CF  CONSTRUCTl N(J  CANAL  IN— RAIL- 

WAY AND  CANAT.  COMPARED. 

Pages  89,  90,  Engineer  Bucklin  discusses  the  difficulties  of  canal 
construction  in  the  valley  and  attaches  importance  to 

‘Hhe  breaches  to  which  it  will  be  annually  subjected  by  the 
numerous  small  streams  which  intersect  the  route  and  must  be 
received  into  the  canal  as  they  cannot  be  passed  under  it  or 
disposed  of  in  any  other  way.” 

He  particularly  complains  (p.  90)  of  the  difficulties  of  construc- 
tion just  above  the  confluence  of  the  Kankakee  and  Des  Plaines, 
where  the  level  is  too  low  to  admit  any  of  the  small  streams  passing 
under  the  canal,  and  says: 

‘^The  soil  also  being  mixed  with  sand  adheres  together  very 
slightly  and  when  saturated  with  water  has  a great  tendency 
to  slip  over  where  the  inclination  of  the  hill  is  moderate.  Con- 
siderable embarrassment  to  the  navigation  of  the  canal  may 
be  exoected  from  this  cause  liesides  the  expense  of  repairs.” 
.(Abst.,  p.  1892.) 

These  are  some  of  the  difficulties  whichi  Engineers  AVilliams. 
Cooley  and  Kramer  found  with  the  construction  of  the  proposed 
dam.  They  found  that  this  site,  where  the  canal  is  built  on  a side 
hill,  was  subject  to  all  these  dangers,  and  that  the  construction  of 
the  proposed  dam  with  a mere  artificial  bank  between  the  canal 
and  the  great  water-power  pool — a hank  made  of  this  same  slip- 
pery soil — ivould  yreatly  increase  the  danger  to  the  canal,  and  that 
no  provision  was  taken,  and  none  shown  in  the  canal  plans,  for  any 
protection  against  this  danger. 

DEEP  CUT  PLAN ROCUv  EXCAVATION  — USE  OF  THE  DES  PLAINES. 

Pages  90  and  91,  the  engineer,  Bucklin,  discusses  these  topics 
and  the  fact  that  the  canal  would  lie  below  the  level  of  the  river, 
and  says : 

‘‘A  liberal  price  is  allowed  for  the  rock  excavation,  the 


most  important  item,^  * as  it  is  liardly  possible  to 

anticipate  tlie  limits  of  the  expenditure  wlien  we  consider  that 
the  bulk  of  the  rock  excavation  lies  below  the  rocky  bed  of  the 
River  Des  Plaines  and  the  interruption  that  the  work  will  con- 
seciuently  be  liable  to  from  the  water  of  the  river  finding  its 
way  through  the  numerous  fissures  of  the  rock  into  the  canal/ ^ 

(Abst.,  p.  1868.) 

The  depletion  of  the  river  by  means  of  the  canal  which  after- 
wards came  to  pass,  Avas  here  predicted  in  advance,  in  1880. 

DES  PLAINES  RIVER WHY  NOT  USED  FOR  CANAL. 

The  report  here  discusses  the  fact  that  the  minimum  discharge 
of  the  Des  Plaines  Eiver  is  60,000  cubic  feet  per  hour,  while  the 
canal  vdll  require  86,400  cubic  feet  per  hour  (that  is,  ‘‘one  lock 
chamber  full  of  water  every  15  minutes,  ascending  and  descend- 
ing”) and  remarks: 

“The  minimum  discharge  of  the  River  Des  Plaines  is  only 
60,000  cubic  feet  per  hour.  Of  course,  it  is  not  competent  to 
supply  even  the  lockage  * * * without  taking  into  consid- 

eration the  loss  by  evaporation  and  leakage,  which  would  alone 
consume  at  least  seven  times  the  quantity  of  water  discharged 
by  the  Des  Plaines  at  its  lowest  stage/’  (Id.,  p.  92.)  (Abst., 
p.  1864.) 

It  will  be  observed  that  the  great  difference  between  the  water 
in  the  canal  and  the  water  in  the  river,  is  that  the  river  in  its  nat- 
ural bed  does  not  suffer  depletion  by  lockage  and  leakage  and  fil- 
tration, as  the  canal  does.  The  flow  of  the  river  in  its  natural  bed, 
as  measured,  is  the  flow  of  what  there  is  left  after  its  natural  deple- 
tions have  occurred. 

In  taking  the  river  out  of  its  natural  bed  and  turning  it  into  an 
artificial  bed,  parallel  to  and  but  10  feet  lower  down  than  the  river, 
the  leakage,  filtration  and  loss  by  artificial  lockage,  is,  as  he  says, 
420,000  cubic  feet  per  hour,  while  what  was  actually  needed  was 
86,400  cubic  feet  per  hour. 

And  this  was  to  allow  them  a full  lock  chamber  every  15  minutes 
for  boats  ascending  and  descending. 

The  engineer  Avisely  took  the  maximum  possible  demand  for  the 
canal  and  compared  it  with  the  minimum  possibility  of  the  river, 
and  then  said  that  the  river  water,  transferred  to  an  artificial  chan- 
nel and  subjected  to  loss  by  lockage,  leakage  and  filtration,  would 


not  1)0  snHi(Mont  to  food  a,  ('anal  to  l)o  inaiiilairKul  poi-rnarioritly  4.! 
feet  deep. 

Kilt  this  is  a very  different  proposition. 

The  river  is  double  its  miniraimi  for  half  the  year;  it  is  more 
than  (piadruple  its  minimum  for  a third  of  the  year,  and  it  is  not 
subjected  to  the  losses  incident  to  an  artificial  channel. 

Again,  as  we  have  seen,  2 feet  of  water  is  ample  for  a navigable 
stream  in  a state  of  nature.  The  fact  that  it  alone,  when  depleted 
by  transfer  to  an  artificial  channel,  is  not  sufficient  at  its  minimum 
which  exists  for  30  or  40  days,  to  maintain  a stream  44  feet  deep 
all  the  year  around ^ not  only  does  not  prove  that  the  river  is  not 
navigable,  but  constitutes  a good  measure  of  proof  that  for  a third 
of  the  year  the  river  is  navigable  so  far  as  volume  of  water  is  con- 
cerned. 


BUCKLIN  OPPOSED  TO  BOTH  RIVER  AND  CANAL. 

ANY  WATER  COMMUNICATION  WHATEVER  THOUGHT  IMPRACTICABLE 

RAILROAD  PREFERRED. 

Engineer  Bucklin  says : 

‘‘In  the  rocky  and  cavernous  district  of  country  to  which 
the  location  of  the  great  part  of  the  route  of  the  canal  is  con- 
fined, there  are  too  many  difficidties  to  be  reasonably  appre- 
hended in  carrying  it  into  successful  operation,  to  justify  the 
establishment  of  a water  communication  on  any  route  or  plan 
ufhatever,  so  many  obstacles  are  opposed  to  the  construction 
of  a canal,  the  examination  of  a route  for  a railway  ivas  very 
successful  in  developing  its  great  advantages  for  the  adoption 
of  that  species  of  improvement.”  ((\  Be]).,  }).  92.)  QKbst.,  p. 
1864.) 

Then  after  describing  the  route  of  the  railway  to  Mount  tfoliet, 
he  says  that  it  corresponds  with  that  of  the  canal,  though  not  en- 
tirely the  same,  “the  inclinations  of  the  railway  frequently  allow- 
ing a better  selection  of  ground  than  that  to  which  the  levels  of  the 
canal  are  confined.” 

Pages  92  to  95  are  devoted  to  the  discussion  of  the  superior  ad- 
vantages for  a railroad,  concluding  (p.  95)  : 

“In  reviewing  the  capabilities  of  the  country  between  Chi- 
cago and  the  foot  of  the  rapids  of  the  Illiuois  River  for  the 
construction  of  a canal  or  railroad,  it  would  seem  * * 

that  the  obstacles  opposed  by  nature  to  the  formation  of  a good 


(■(Uial  on  miij  route  or  plan  irhaiever  ai-e  sucli  tliat  notliing 
(‘Oiild  Justify  the  undertaking,  but  the  fact  of  its  being  the  only 
means,”  ete. 

“Foi*  this  reason  the  unparalleled  advantages  presented  on 
the  route  of  the  railway  * * * are  invested  with  addi* 

lional  Viilue,”  el('.  (p.  ho.)  (Al)st.,  ]).  LShf).) 

We  have  seen  (Sehoolernft’s  Travels  in  tlie  Mississippi  Val- 
ley, page  odd)  that  the  view  wliieli  prevailed  in  1821,  as  applied  to 
the  proposed  eanal,  was  what  Schoolcraft  calls  ‘'the  noble  idea  of 
the  celebrated  Brindley  ‘that  streams  were  only  made  to  feed 
canals’  ” (Ahst...  p.  1051),  and  we  now  see  that  th.e  engineer  who 
was  em])loyed  to  lay  out  the  route  of  the  canal  was  determined  to 
have  a railroad. 

And  in  the  constructions  which  followed,  these  two  noble  ideas 
were  adopted  in  practice.  The  river  was  displaced  as  the  line  of 
travel  and  made  to  feed  the  canal,  and  then  the  canal  was  displaced 
as  a line  of  travel  and  its  right  of  way  made  to  serve  as  a road- 
bed. 

EFFF.CTo  OF  THE  R VTLRO \D  SCHEME CANAL  COMMISSIONERS  ABOL- 
ISHED  MEMORIAL  TO  CONGRESS  BY  STATE  LEGISLATURE. 

Following  this  communication  the  Act  of  March  1,  1833,  was 
passed,  abolishing  the  office  of  Canal  Commissioners.  (Id.,  p.  104.) 

December  20,  1832,  the  State  Legislature  memorialized  Congress, 
stating  that  “the  expense  (of  the  canal)  will  greatly  exceed  the 
amount  originally  contemplated ; that  a railroad  or  turnpike  upon 
the  whole  will  be  more  useful  and  less  expensive,”  and  pointed  out 
that  the  land  grant  was  restricted  to  canal  purposes,  and  prayed 
for  a modification  in  favor  of  a railroad  or  turnpike.  (Id.) 

]\rarch  2,  1833,  Congress  passed  an  act  permitting  a railroad  to 
he  substituted.  (Id.,  p.  105.) 

In  December,  1834,  Governor  Duncan  in  his  message  to  the 
Legislature  again  favored  the  canal,  and  in  January,  1835,  the 
act  for  the  construction  of  the  canal  was  passed.  The  people  re- 
mained determined  to  have  a canal.  The  canal  history  states: 

“From  1831  to  1835  a strong  effort  was  made  to  secure  the 
construction  of  a railroad  instead  of  a canal.  This  effort, 
however,  while  it  was  advocated  by  many  of  the  leading  men 
of  the  State,  met  with  little  encouragement  from  the  people.” 
(]).  105.)  (Abst.,  p.  1867.) 


In  183(5  another  act  lor  the  construction  of  the  canal  was  passed 
at  a special  session  of  the  Legislature  convened  by  Governor  Dun- 
can (105-()),  and  a new  hoard  of  Canal  Commissioners  were  ap- 
])ointed  and  began  woi'k.  (Id.,  j).  lOfi-^f.)  (Aljst.,  p.  18(57.) 

THE  WESTERN  TERMINUS  OF  THE  CANAL. 

On  June  23,  1836,  citizens  of  Ottawa  petitioned  the  Canal  Com- 
missioners to  provide  for  slack  water  navigation  up  the  Illinois 
over  the  bar  at  the  mouth  of  the  Little  Vermilion  and  the  reef  at 
Starved  Eock,  and  practically  to  terminate  the  canal  at  Ottawa  at 
the  mouth  of  the  Fox  River,  as  planned  by  the  treaty  of  1816  and 
as  recommended  by  Engineer  Bucklin  in  1830.  (Canal  History,  p. 
91.)  For  petition  by  citizens  of  Ottawa,  see  Canal  History,  p.  109. 
(Abst.,  p.  1868.) 

The  Canal  Commissioners  replied  that  the  question  was  not  new; 
that  the  Legislature  had  accumulated  a large  fund  of  information 
as  to  each  plan,  both  in  relation  to  the  safety  and  stability  of  navi- 
gation, and  to  the  increased  revenue  derivable  from  State  prop- 
erty by  terminating  the  caned  as  loiv  down  the  river  as  ivas  con- 
templated in  the  grant  of  lands  from  the  Government  of  the  United 
States.  For  can  it  be  doubted  that  the  tenor  of  that  grant  had 
some  influence  on  the  decision.”  (Canal  Report,  p.  109.)  (Abst., 
]).  1868.) 

Here  was  the  avowed  declaration  that  the  canal  was  made  as 
long  as  possible  in  order  to  get  as  great  a land  ginnt  as  possible, 
and  made  by  the  Commissioners  themselves  in  response  to  a peti- 
tion from  the  citizens  of  Ottawn  to  have  the  terminus  located 
there. 

The  letter  of  the  Commissioners  to  the  citizens  of  Ottawa  admits 
that  the  still  water  navigation  would  be  the  better  method  of  oper- 
ating the  river,  and  that  the  engineer  who  had  planned  the  canal 
had  so  reported;  but  (continues  President  Thornton  for  the  board) 
‘On  his  zeal  to  demonstrate  the  superiority  of  a railroad  over 
either  mode  of  water  communication  he  admitted  a steamboat 
canal  around  the  rapids  to  be  too  precarious,”  etc. 

The  board  conclude  that  they  ^Aleem  themselves  unauthorized 
at  this  time  to  cause  a survey  of  the  rapids  of  the  Illinois  Eiver 
with  a view  of  their  ultimate  improvement  for  slack  water  naviga- 


498 


lion.  * * * In  ('oining  to  tlii.s  oonelusion  the  Board  of  Com- 

missioners are  influenced,  in  tlie  first  ease,  by  the  consideration 
tliat  if  a continuous  canal  should  l)e  shown  to  be  too  costly  for  its 
benefits,  a still  irater  navigation  ivill  he  the  only  alternative.  * * * 
(Signed)  W.  F.  Thornton,  President  Board  C.^omms.  T.  & At.  CanalP^ 
(Canal  liopoi't,  11P)  (i\bst,,  ]).  1870.) 

it  thus  appears  that  tlie  question  whether  the  canal  should  be  ci 
continuous  canal  or  simply  a canal  around  each  of  the  rapids,  or 
slack  water  navigation  over  the  rapids  of  the  Illinois  ivith  naviga- 
tion hy  the  river  the  rest  of  the  way,  was  a subject  then  under  de- 
bate, and  that  the  desire  to  get  as  long  a canal  as  possible  in  order 
to  get  a land  grant  five  miles  wide  on  each  side  of  the  canal,  was 
the  controlling  and  deciding  force. 

THE  ENL.\RGED  PLAN  OF  THE  CANAL— PtEPOFtT  OF  1886. 

The  new  board  reported  that  the  magnitude  of  the  undertaking 
had  been  miscomprehended;  that  the  largest  previous  estimate  of 
cost  was  about  $4,000,000,  and  that  that  was  too  small ; that  double 
that  sum  would  be  required  to  build  a canal  by  a deep  cut  plan,  fed 
from  Lake  Alichigan ; that  the  new  Act  required  a canal  45  feet 
wide,  where  the  old  figures  were  based  on  40  feet  width ; with  other 
enlargements ; and  that  the  cost  was  such  as  to  make  it  necessary  to 
resort  to  the  feeder  system  and  shallow  cut.  (Canal  Report,  pp. 
118,  114.)  (Abst.,  p.  1871.)  The  Commissioners  further  reported 
tl-at  they  had  decided  on  a canal  60  feet  wide  at  the  top,  36  feet 
Avide  at  tlie  liottcm  and  6 feet  deep,  to  conform  to  the  Act.  (Id., 
114.)  (Abst.,  p.  1871.) 


THE  MACADAM  AND  PLANK  ROAD  ACROSS  THE  SWAMP  FROM  JOLIET  TO 

CHICAGO. 

In  the  annual  report  for  1886  the  Commissioners  report  that  the 
heaviest  expense  was  in  building  this  macadam  and  plank  road 
OAmr  the  Saganashkee  Swamp,  owing  to  the  total  absence  of  a 
road  along  the  route  of  the  canal,  which  passes,  for  several  miles, 
through  marshy,  wet  prairie,  and  lieaA^  timber.  Some  steps  must 
be  taken  to  secure  free  access  to  the  line  at  all  seasons  of  the 
imAR.”  (Canal  Report,  p.  118.)  And  on  page  141  of  the  Report 
for  1900  it  is  further  said: 


49!) 


‘‘During  the  year  1836  the  Canal  Commissioners  (construct- 
ed, by  grading  and  bridging,  what  was  then  known  as  the 
Saganaskee  Eoad,  now  known  as  Archer  Avenue  and  Archer 
Bead,  extending  f rom  State  Street,  Chicago,  to  Joliet. 

''The  total  absence  of  a ro(ul  along  the  route  of  the  canal 
* * * to  secure  free  access  to  the  line  at  all  seasons  of  the 

year.’’  (Abst.,  p.  1872.) 

These  were  the  reasons  for  building  the  road. 

That  is,  these,  and  the  building  of  Archer’s  addition,  as  noted  by 
Woodrutf. 

And  for  these  $47,000  of  canal  money  was  paid  out. 

It  was  not  that  there  was  not  good  travel  by  the  river  for  six 
months  out  of  every  twelve,  but  it  was  to  get  a road  along  the 
canal  at  all  seasons  of  the  year. 

The  contention  that  in  the  early  day,  prior  to  the  hmlding  of  this 
road,  the  travel  went  at  all  seasons  of  the  year  from  Chicago  to  La- 
Salle, by  means  of  wagons  solely,  and  not  by  the  river,  is  shown  to 
be  wrong.  It  was  not  until  after  this  $47,000  road  was  built  that 
the  wagon  route  became  an  all-the-year-around  proposition.) 

TH^  EFFEtCT  OF  THE  CANAT.  ON  THE  NATURAL  RESERVOIRS  FEEJ)IN(;  THE 

DES  PLAINES. 

From  Report  of  Chief  Engineer  Gooding,  December,  1836: 

“Two  lines  of  levels  were  run  across  tlie  country  lying  be- 
tween Chicago  and  the  Des  Plaines  Kiver,  near  the  mouth  of 
Portage  or  Mud  Lake,  the  one  commencing  near  the  mouth  of 
a broad  slough,  on  the  north  fork  of  the  south  branch  of  Chi- 
cago river,  at  the  point  where  the  former  canal  surveys  were 
commenced,  the  other,”  etc.  {(kinal  Rep.,  1900,  p.  119.)  (Abst., 
p.  1873.) 

PORTAGE  LAKE. WATER  COMMUNICATION  WITH  CHICAGO  RIVER. 

“This  line  passes  over  ground  but  little  elevated  above  the 
surface  of  Portage  Lake  at  an  ordinary  stage  of  water,  and 
which  is  mostly  inundated  during  the  floods  of  the  Des  Plaines, 
the  waters  of  ivhich,  it  is  well  known,  freuiiiently  flow  across 
the  loiv  country  into  the  south  branch  of  the  Chicago  River. 

USE  OF  PORTAGE  LAKE  AND  DES  PLAINES  FOR  CANAL. 

“A  particular  examination  was  also  made  of  Portage  Lake 
and  of  the  Des  Plaines  River  with  the  view  of  occupying  por- 


500 


tioiis  of  eacli  with  the  canal  should  the  result  prove  favorable. 
But  it  was  found  that  no  saving  could  be  effected  by  such  an 
arrangement.  Portage  Lake  is  a succession  of  ponds  on  the 
same  level,  connected  with  each  other  and  with  the  Des  Plaines 
River,  and  extending  about  six  miles  toward  Chicago  River, 
nearly  in  the  direction  of  the  canal  line.  The  surface  of  the 
water  at  an  ordinary  stage  is  lOJ-  feet  above  Lake  Michigan 
and  the  mud  in  the  bottom  is  generally  found  5 to  6 feet  above 
Lake  Michigan,  or  from  11  to  12  feet  above  bottom  of  canal. 

EXPENSE  THE  OBJECTION. 

‘ ‘ To  excavate  the  canal  to  the  requisite  depth  through  these 
ponds  and  the  marshes  on  their  borders,  would  be  attended 
with  great  difficulty  and  a cost  far  exceeding  that  of  making 
the  through  cut  along  the  borders  of  the  marshes  on  ground 
more  favorable.  (Abst.,  p.  1873.) 

OCCUPYING  CHANNEL DIFFICULTY  OF  CONTBOLLING  AND  KEEPING 

OUT  WATEB  WHILE  EXCAVATING. 

^ ‘ The  examination  of  the  Des  Plaines  River  resulted  no  less 
unfavorable  than  that  of  Portage  Lake.  The  bed  of  this 
stream  for  13^  miles  below  the  point  where  the  canal  line  en- 
ters the  valley,  except  in  a few  places  and  for  short  distances 
only,  is  from  8 to  12  feet  above  bottom  of  canal,  and  nothing 
whatever  could  be  gained  by  occupying  any  portion  of  the 
channel,  as  the  difficulty  of  disposing  of  or  keeping  out  the 
waters  of  the  river  to  make  the  necessary  excavation  ivould 
more  than  balance  the  diminution  of  the  quantity  to  he  exca- 
vated hy  such  location.”  (Lanai  Rep.,  p.  119.)  (Abst.,  p. 
1873.) 

And  here  the  engineer  who  actually  constructed  the  canal  an- 
swers the  inquiry  which  is  occasionally  put:  ‘‘Why  did  they  not 
use  the  river  P’  His  reason  was  that  to  make  a canal  6 feet  deep 
would  require  some  excavation  in  the  river  bed,  and  that  there 
would  be  difficulty  in  keeping  the  water  out  while  he  was  putting 
the  excavation  in,  and  that  it  would  be  easier  to  dig  a fresh  one 
alongside. 

This,  and  the  building  of  a long  canal  to  get  a long  land  grant, 
were  the  reasons  the  river  was  not  used.  They  have  nothing  to  do 
icith  the  navlgahility  of  ihe  Des  Plaines. 


501 


'IMIK  LOCATION  OK  TIIK  JtOUTK. 

The  new  engineer,  Mr.  Gooding,  under  the  new  Board  of  Com- 
missioners under  the  new  statute,  of  1836,  proceeded  to  lay  out  a 
new  route,  which  he  describes  at  considerable  length  in  the  report, 
pages  119  to  126. 

THE  DU  PAGE-DKESDElH  SECTION DIFFICULT  NATURE  OF  THE  CON- 
STRUCTION  DANGER  TO  THE  CANAL  FROM  SLIPPING  OF  EM- 
BANKMENT  ENGINEER  GOODING  ^S  SUGGESTION  THAT  THE 

RIVER  BE  USED. 

About  two  miles  below  the  crossing  of  the  Du  Page  a very 
difficult  and  expensive  portion  of  the  line  commences  and  ex- 
tends nearly  to  Dresden,  below  the  mouth  of  the  Kankakee 
River.  The  bluffs,  which  are  from  100  to  150  feet  in  height, 
approach  the  river  so  as  to  be  washed  by  it  at  their  base,  and 
the  towing  path  bank  which  will  be  partly  or  wholly  hmlt  in  the 
river  at  the  base  of  the  bluffs  will  require  slope  wall  to  pro- 
tect it  against  abrasion  from  the  flood  waters  of  the  river,  for 
an  aggregate  distance  of  2 miles  and  50  chains. 

^^The  most  expensive  portion  of  this  difficult  section  com- 
mences a short  distance  above  the  mouth  of  the  Kankakee 
River,  and  continues  to  the  termination  of  the  bluffs.  The 
base  of  the  towing  path  will  be  wholly  in  the  river,  and  the  em- 
bankment must  be  formed  by  earth  taken  either  from  the  top 
of  the  bluff  or  from  the  opposite  side  of  the  bluff,  for  the  ex- 
cavation of  any  portion  of  the  prism  of  canal  in  the  bluff  would 
increase  its  tendency  to  slip  and  consequently  endanger  the 
canal. 

‘‘Heavy  protection  wall  will  here  be  required  to  resist  the 
force  of  the  ice  floods  of  the  Kankakee,  but  it  is  believed  that 
the  estimate  of  cost  presented  is  sufficient  to  construct  a canal 
as  permanent  as  it  can  well  be  made  along  clay  bluffs  which 
seem  so  much  inclined  to  slip. 

“Another  mode  of  passing  the  bluffs  may  be  worthy  of  ex- 
amination before  a final  location  is  made  of  this  part  of  the 
line  between  Dresden  and  Marseilles. 

“A  dam  may  be  built  at  the  foot  of  the  bluffs  and  a towing 
path  constructed  along  their  base,  so  as  to  pass  this  difficiilt 
portion  of  the  line  by  slack  water  at  much  less  expense  than 
the  present  estimate  of  an  independent  canal^  and  ivotdd,  un- 
doubtedly, be  quite  as  secure  in  improvement.  By  raising  the 
water  15  feet  {and  a dam  of  this  height  can  be  rendered  per- 
fectly secure,  for  there  is  a good  rock  foundation)  the  line 
would  be  thrown  10^  feet  lower  than  the  survey  made  to  Lock 
No.  8,  of  8 feet  lift,  between  the  Aux  Sable  River  and  Nettle 


502 


(vreek,  and  2),  feet  loAvei*  tlian  tlie  line  surveyed  from  tliis  lock 
to  Locks  Nos.  9 and  10,  a short  distance  above  Marseilles.” 
Lanai  Re]).,  124.)  (Abst.,  )>]).  1875-1870.) 

And  here  Lngineer  (Jooding  i‘(‘])ented  the  o])inion  of  Mr.  Bnck- 
lin  six  years  before,  that  this  point  at  the  mouth  of  the  Kankakee 
was  the  most  difficult  point  for  the  maintenance  of  the  proper  em- 
bankment and  protection  of  the  canal  against  danger  from  the 
breaking  of  the  bank.  It  was  the  same  opinion  that  Engineer  Wil- 
liams, Engineer  Cooley  and  Engineer  Kramer  expressed  in  -the 
present  trial  as  to  the  increased  risk  to  come  from  such  a con- 
struction alongside  of  the  canal. 

LOCATION  OF  THE  AVESTERN  TERMINUS. 

^‘The  termination  of  the  canal  is  made  on  the  corner  of 
Section  21,  in  Township  33  N,  K.  1 East  of  the  3d  principal 
meridian.”  (Canal  Eep.,  126.)  (Abst.,  p.  1877.) 


GOOUING’s  suggestion  to  use  THE  RIVER HOAV  IT  AVAS  ACTED  ON 

SHALLOAV  cut;  HIGH  LEAmL ; AVITH  RIVER  FEEDERS. 

Engineer  Gooding ^s  recommendation  and  the  reports  of  the 
Commissioners  were  referred  to  the  Legislative  Committee  on 
canal  lands. 

February  15,  1837,  that  committee  reported : 

‘^The  committee  on  canal  and  canal  lands,  to  which  was  re- 
ferred the  message  of  the  Governor  transmitting  the  annual 
report  of  the  Canal  Commissioners ; also  a report  of  the  com- 
mittee on  roads  and  canals  of  the  House  of  Kepresentatives, 
have  had  the  various  matters  submitted  to  them  under  con- 
sideration, and  submit  the  following  as  the  result  of  their  de- 
liberations. 

*********** 

^‘The  first  change  proposed  by  the  committee  of  the  House 
is  upon  the  Summit  dhdsion  of  the  canal  line,  thirty-two  miles 
in  extent.  (Abst.,  p.  1877.) 

SHALLOAV  CUT  HIGH  LEVEL  AVITH  RIVER  FEEDERS. 

^‘The  proposition  is  to  adopt  the  high  level,  as  run  by  Mr. 
Bucklin,  ten  feet  above  the  surface  of  Lake  Michigan,  using 
the  Calamic  and  Des  Plaines  Kivers  for  feeders. 


503 


]Ml>HOVEMEiNT  OF  ILlilNOlS  IllVER  TO  HEAD  OF  FAKE  iiOlAV/W 

‘‘Tlie  second  is  to  substitute  the  improvements  of  tlie  Illi- 
nois River,  from  the  foot  of  the  rapids  to  the  head  of  Lake 
Joliet,  for  steam  iiari(/ai ioii , hy  means  of  locks  and  dams. 
(Abst.,  p.  1878.) 

DISCUSSIOIT  OF  HIGH  LEVEL  FEEDER  PROPOSITION. 

‘‘The  reasons  urged  by  the  committee  of  the  House  in  favor 
of  the  first  changes  proposed  are: 

“(1)  The  large  sum  which  the  canal  will  cost  upon  the 
present  plan. 

“ (2)  The  length  of  time  required  for  its  completion. 

“(3)  The  difficulties  of  construction;  and 

“(4)  That  a better  plan  can  be  adopted.”  (C.  Eep.,  133- 
134.)  (Abst.,  1878.) 

The  House  committee  favored  the  open  river  navigation  of  the 
Illinois  and  Hes  Plaines  from  the  foot  of  the  rapids  to  the  head  of 
Lake  Joliet.  The  Senate  disapproved  it.  Their  report  is  set  out, 
pp.  133-136. 


SUMMARY  OF  CANAL  HISTORY- — TERMINI  OF  CANAL. 

SENATE  COMMITTEE'S  REPORT^  1837. 

The  Senate  summarized  former  history  thus : 

“In  the  examination  of  the  questions  now  under  considera- 
tion, the  committee  will  first  review  the  Legislative  action 
hearing  on  the  point. 

“In  1823  an  act  was  passed  organizing  a board  of  commis- 
sioners. * * * examination  and  survey  were  executed 

under  their  direction  by  Messrs.  Paul  and  Post,  both  of  whom 
stood  high  as  men  of  science,  talents  and  integrity. 

“In  January,  1829,  an  act  was  passed  by  which  a Board  of 
Canal  Commissioners  was  organized,  who  were  required  to 
locate  the  canal  to  effect  a navigable  communication  between 
Lake  Michigan  and  the  Illinois  River.  The  canal  to  be  at 
least  40  feet  in  width  at  the  summit  of  the  water  line,  28  feet 
wide  at  the  bottom,  and  of  sufficient  depth  to  contain  at  least 
4 feet  of  water;  and  to  be  furnished  with  such  looks,  aqueducts 
and  dams  as  might  be  required  to  secure  a safe  and  convenient 
navigation  for  boats  at  least  75  feet  long,  134  feet  wide  and 
drawing  3 feet  of  water.  No  point  is  fixed  in  either  of  those 
acts  for  the  termination  or  commencement  of  the  canal,  nor 
ivas  any  direction  given  as  to  the  ivaters  to  he  used  as  feeders. 

“In  1831  the  last  act  referred  to  was  amended,  and  an  exam- 
ination was  required  to  be  made  of  the  Illinois  River,  from  the 


iiioutli  of  Fox  liiver  down  to  the  head  of  steamboat  navigation, 
with  the  view  of  ascertaining  whether  tlie  Illinois  Eiver  could 
he  improved  by  dams  and  locks,  or  otherwise,  so  as  to  secure 
its  navigation  as  far  upwards  as  the  mouth  of  the  Fox  River. 
All  (ou'.mination  was  also  required  of  the  Calamic  River  to  as- 
certain its  probalhe  sufficiency  as  a feeder  for  that  part  of  the 
canal  between  tlie  Chicago  and  Des  Plaines  Rivers. 

‘‘In  1832-3,  after  an  ineffectual  attempt  to  change  the  char- 
acter of  the  improvement,  from  a canal  to  that  of  a railway, 
the  Board  of  Canal  Commissioners  was  abolished,  and  all 
further  progress  of  the  work  suspended. 

“In  1834-5  another  act  was  passed  which  provided  that  the 
canal  shall  not  be  less  than  45  feet  at  the  surface,  30  feet  at 
the  base  and  of  sufficient  depth  to  insure  a navigation  of  at 
least  4 feet,  to  be  suited  for  ordinary  canal  boat  navigation,  to 
be  supplied  with  water  from  Lake  Michigan  and  such  other 
sources  as  the  Canal  Commissioners  may  think  proper.  No 
point  of  termination  v:as  fixed  hy  this  act.  (Abst.,  p.  1879.) 

WESTElRX  terminus  finally  fixed  JANUARY  9,  1836. 

“The  act  of  9th  January,  1836,  under  which  the  late  Canal 
Commissioners  acted,  provides  that  the  canal  shall  commence 
at  or  near  the  Town  of  Chicago,  on  canal  lands,  and  shall  ter- 
minate near  the  mouth  of,  the  Little  Vermilion  River ^ in  La- 
Salle County^  and  on  lands  owned  hy  the  State.  * * * 

It  may  here  be  remarked  that  an  examination  of  the  various 
laws  will  show  that  the  provisions  upon  the  point  under  con- 
sideration were  not  adopted  hy  accident  and  without  design. 

‘ ‘ The  committee  of  the  House  in  order  to  prove  the  practica- 
bility of  the  change  proposed,  have  made  calculations  as  to 
the  quantity  of  water  required  to  supply  such  a canal  as  is  pro- 
posed to  be  constructed,  and  at  page  10  of  their  report  say: 
‘Your  committee  feel  assured  that  not  only  a sufficient  quan- 
tity of  water  for  all  the  purposes  of  the  canal  can  be  procured 
from  these  two  sources  {the  Calamic  and  Des  Plaines),  hut 
that  a large  surplus  will  still  remain.  (iVbst.,  p.  1880.) 

THE  SENATE  COMMITTEE  LEAVE  TO  MR.  BUCKLIN  THE  QUESTION  OF 
SHALLOW  CUT  VS.  DEEP  CUT,  BUT  NOT  THE  QUESTION  OF  OPEN 
RIVER  NAVIGATION. 

“No  member  of  your  committee  having  sufficient  knowledge 
of  the  science  of  engineering  to  risk  his  own  judgment  upon 
this  question  in  opposition  to  the  published  opinions  of  gentle- 
men of  acknowledged  scientific  information,  they  are  compelled 
to  rely  upon  the  opinions  of  others,  in  whose  judgment  they 
have  confidence.  Mr.  Bucklin,  well  known  to  the  public,  having 


505 


recently  arrived  at  tliis  place,  the  cliairniari  of  the  coinrnittee 
addressed  a note  to  him,  which,  together  with  the  reply,  is  as 
follows:  (Canal  Eep.,  135.) 

^Vandalia,  February  8,  1837. 

‘‘  ‘Mr.  J.  M.  Bucklin, 

“ ‘Sir: — I am  engaged  as  chairman  of  a committee  of  the 
Senate,  investigating  the  questions  which  have  recently  arisen 
in  regard  to  the  change  in  the  plans  in  constructing  the  Illi- 
nois and  Michigan  Canal,  and  particularly  the  question  in  rela- 
tion to  the  abandonment  of  the  project  of  supplying  the  canal 
with  water  from  the  lake,  and  resorting  to  the  Calamic.  Not 
being  an  engineer,  nor  familiar  with  the  calculations  in  rela- 
tion to  the  quantity  of  water  required  to  supply  a canal  of  the 
size  contemplated,  I take  the  liberty  of  asking  your  assistance, 
and  request  the  favor  of  you  to  review  the  calculations  here- 
tofore made  by  yourself  and  others  in  reference  to  the  quantity 
of  water  in  the  Calamic,  and  to  state  the  quantity  required  for 
the  canal  as  at  present  proposed  to  be  constructed.  You  will 
also  state  if  there  is  anything  peculiar  in  the  character  of  the 
country  to  justify  the  erecting  of  a canal  without  providing  the 
usual  quantity  of  water  for  evaporation  and  leakage.  All  the 
documents,  except  the  report  made  by  you  in  1830,  will  be  fur- 
nished, if  desired.  (Abst..  pp.  1880-1881.) 

“ ‘Very  respectfully,  your  obedient  servant, 

“ ‘Wm.  Thomas, 

“ ‘Chairman  of  the  Committee  on  Canals,’  etc.” 

The  following  is  Mr.  Bucklin’s  reply: 

“ ‘Sir: 


“ ‘The  River  Des  Plaines  was  gauged  at  Laughton’s  Ford, 
by  Messrs.  Post  and  Paul,  in  the  first  survey  that  was  ever 
made  of  the  route  of  the  Illinois  and  Michigan  canal,  and  the 
discharge  found  to  be  72,000  cubic  feet  per  hour.  They  also 
gauged  it  at  the  Cache  island,  eighteen  miles  below,  where  they 
ascertained  the  discharge  to  be  117,000  cubic  feet  per  hour.  In 
October,  1829,  it  was  gauged  by  Dr.  Howard,  U.  S.  civil  en- 
gineer, who  places  the  discharge  at  96,480  cubic  feet  per  hour. 
At  the  same  place  (Laughton’s  Ford)  it  was  again  gauged  by 
Messrs.  Harrison  and  Guion,  on  the  8th  of  August,  1830,  and 
found  to  discharge  60,000  cubic  feet  per  hour.  The  Calamic 
River  was  gauged  by  me  in  the  month  of  September,  1830,  and 
found  to  discharge  estimated  at  320,000  cubic  feet  per  hour.  It 
was  also  gauged  by  Mr.  Guion,  assistant  civil  engineer,  in  the 
service  of  the  United  States,  about  the  same  time,  and  the  dis- 
charge placed  by  him  at  1,033,000  cubic  feet  per  hour.  It  may 
be  proper  to  remark  here  that  the  fall  of  1830  was  a season  of 
extraordinary  drought. 


r)()(; 


‘Tlie  allowance  of  TOO  cubic  feet  y)er  mile  per  minute  for 
evaj)oration  and  filtration  was  assinned  by  me  as  the  basis  of 
all  calculations  in  deliberating  the  minimum  (juantity  of  water 
to  be  provided  for  the  Illinois  and  ^Michigan  Canal. 

‘The  surface  of  the  canal  as  at  present  proposed  to  be 
constructed,  is  sixty  feet,  and  bears  the  proposition  of  one  and 
onedialf  to  one  to  the  surface  of  the  canal  as  at  first  proposed. 
The  depth  of  water  is  now  six  feet,  whereas  it  was  formerly 
four  feet,  consequently,  the  pressure  of  water  ])eing  as  the 
squares  of  the  heights,  the  pressure  will  be  more  than  doubled 
and  the  leakage  (taking  into  calculation  the  great  surface)  in- 
crccised  in  pro])orticn  to  one  and  a luilf  to  one.  (Abst.,  p. 
1881.) 

“ ‘The  quantity  of  water  then  that  will  be  required  to  sup- 
ply the  evaporation  and  leakage  in  a canal  of  the  dimensions 
proposed,  will  be  150  cubic  feet  per  minute  per  mile ; and  with 
reference  to  the  peculiar  character  of  the  country  through 
which  the  canal  passes,  I know  of  nothing  which  would  justify 
a departure  from  the  established  rule,  in  regulating  the  sup- 
ply of  water.  It  is  true  the  upper  level  is  situated  in  a very 
wet  country,  but  the  levels  below  dependent  upon  the  summit 
of  water,  are  located  on  ground  very  badly  calculated  to  retain 
it,  and  it  is  x)ossible  that  more  than  the  ordinary  supply  may 
be  required. 

“ ‘If  the  project  of  supplying  the  canal  from  Lake  Michigan 
be  abandoned,  and  the  high  level  resorted  to,  the  length  of 
canal,  including  feeders,  to  be  supplied  wuth  water  on  the  upper 
level  is  fifty-six  miles,  which  will  require  8,407  cubic 
feet  per  minute  to  supply  the  evaporation  and  leakage,  and  a 
further  supply  of  2,112  for  lockage,  making  in  all  a minimum 
supply  of  10,512  cubic  feet  per  minute. 

“ ‘Verv  respectfully,  vour  obedient  servant, 

“ ‘J.  M.  Bucklix.’ ” 

((Maiai  Rep.,  p.  IhG.)  (Abst.,  p.  1882.) 

[It  will  be  ol>served  (1)  that  the  gauging  of  the  I)es 
Plaines  at  Laugliton’s  (the  Riverside)  Ford,  August  8, 
1830,  was  not  by  Biicklht,  the  writer,  but  was  taken  b\ 
him  at  second  hand  from  “Messrs.  Harrison  and  Guioii” 
(unknown),  and  this  has  been  re]3eated  frcm  Bucklin  ever 
since. 

(2)  This  was  at  a point  on  tlie  stream  above,  and  there- 
fore not  showing  the  contributions  from  (a)  500  s(|uare 
miles  of  drainage  area;  (b)  Portage  Lake;  (c)  Saganas- 
kee  swam]);  (d)  The  Sag;  (e)  Hickory  Creek;  (f)  Jack- 
son  Creek;  (g)  Rock  River;  (h)  Du  Page  River.  The 
river  at  the  ]mint  in  ouestion  is  larger  bv  all  these  fac- 
tors; and  at  Joliet  it  is  larger  than  at  Riverside  ])y  the 
first  four. 


:)()7 

{:>)  This  (‘rilicisin  oF  lh(‘  wai(M-  supply  oF  111';  I )(;s 
ri.-iiiies  i\ud  (hiluiuel  jmd  nil  oF  llu'  (‘i-iii^-isins  lli(;r(;()F  in 
those  i-opoiis  oF  the  ('anal  (‘n,i>ino(;i-s  do  not  to  IIk* 
anionnt  of  waters  in  ihc  river  in  their  natural  i)la('e,  l)nt 
to  the  amount  of  water  availa))Ie  after  transfer  to  a de- 
f ached  atnal  and  dejileted  hij  leakaae,  fdtration  and  evapo- 
ration in  their  new  artiticaal  eartlien  l)Ox;  that  is,  over 
half  the  water  is  lost  in  picking  it  up  out  of  the  river  and 
putting  it  %n  the  canald] 

So  Gen.  Wilson  and  this  same  Engineer  Gooding,  in  recoin- 
mending  to  the  U.  S.  Government  a plan  for  a ship  canal  in  1867, 
said : 

‘‘As  all  the  water  drawn  from  Lake  Michigan  and  received 
into  the  Des  Plaines  and  Illinois  Rivers  from  trihntary  streams 
will  contribute  to  their  channels  for  navigation,  none  of  it  be- 
ing LOST  BY  FILTRATION,  the  full  depth  requisite  can  be  more 
certainly  maintained  than  in  a canalM  (U.  S.  Engineer  ’s  Re- 
port, 1868,  p.  446.) 

[Tlie  natural  river  running  in  channel  through  the 
rock  has  for  ages  adapted  itself  to  the  materia]  of  its 
bed.  Whatever  loss  by  leakage  or  filtration  it  may  sus- 
tain, the  quantity  measured  in  the  flow  of  the  stream  is 
what  is  left  after  all  those  losses  have  occurred.  To  turn 
the  river  water  into  the  artificial  canal  is  to  make  it  suf- 
fer all  these  losses  over  again.  The  artificial  canal  in 
earth  loses  over  half  the  water  from  these  causes;  so 
while  60,000  feet  per  hour  or  1,000  feet  ])er  minute  in 
the  Des  Plaines  is  always,  even  in  lowest  water,  avail- 
able at  Riverside  with  large  increments  below,  while  in 
its  natural  channel,  only  200  cubic  feet  efficient  could  be 
counted  on  the  artificial  earth  channel  after  transfer, 
leakage  and  filtration.] 

FINDINGS  OF  THE  SENATE  COMMITTEE. 

The  Senate  Committee  found  that  Indiana  had  some  rights  in 
the  Calumet  and  was  proposing  to  use  it  for  a canal,  and  concluded 
that  the  Calumet  and  Des  Plaines  did  not  afford  sufficient  water 
for  a canal  and  that  it  would  not  be  safe  to  rely  on  the  Calumet. 

The  Senate  Committee  (pp.  137-8)  argue  against  the  shallow 
cut  and  say  'that  “in  order  to  construct  such  a canal  as  the  United 
States  has  a right  to  expect,  the  waters  of  the  lake  must  be  uscdM 
Their  reply  is,  in  substance,  that  the  nation  has  paid  with  a land 
grant  for  a canal  national  in  scope;  therefore  we  will  use  the  waters 


■m 


of  the  lake.  This  is  still  a discussion  of  deep  cut  vs.  shallow  cut. 
There  is  no  discussion  in  the  Senate  report  of  the  question  of  im- 
proving the  channel  of  the  river.  The  Committee  say  (p.  137) : 

^‘The  interest  which  the  nation  has  taken  in  the  project  is 
evinced  by  the  Act  of  Congress  changing  the  northern  bound- 
ary line  of  the  State  by  the  purchase  from  the  Indians  of  a strip 
of  territory  extending  from  the  Illinois  to  the  lake,  with  an 
eye  single  to  this  project,  by  the  Act  of  Congress  granting 
right  of  way  to  the  State,  and  by  the  subsequent  Act  granting 
lands  of  value  sufficient  to  defray  the  whole  cost  of  the  work. 

‘‘It  has  always  been  regarded  as  a national  work,  and  the 
nation  having  furnished  the  means  for  its  execution,  have  a 
right  to  expect  that  the  work  shall  be  projected  and  executed 
in  a manner  suited  to  the  character  and  views  of  an  united  and 
enlightened  people.  The  fund  for  this  purpose  is  admitted  on 
all  hands  to  be  ample  and  no  citizen  of  Illinois  ought  to  be 
willing  to  see  the  faith  of  the  State  violated,  public  expecta- 
tion disappointed,  and  the  beneficence  of  the  national  govern- 
ment abused  by  authorizing  any  other  description  of  work.’’ 
(Abst.,  p.  1884.) 

[It  will  be  observed  that  Engineer  Bucklin  opposed  all 
canal  projects  wliatever  in  favor  of  a railroad;  and  that 
he  had  planned  an  independent  canal  for  the  whole  length 
ratlier  than  a canal  to  Lake  Joliet  and  an  improvement 
of  the  river  from  that  point  on. 

Mr.  Bucklin  did  not  construct  the  canal. 

Engineer  Gooding  in  large  part  did  construct  the  canal. 
Engineer  Gooding  favored  using  the  river  from  Lake 
Joliet  on ; and  he  favored  the  use  of  the  rivers  as  feeders.] 

Neither  of  the  two  plans  was  adopted  in  its  entirety.  The  Buck- 
Uu  plan  of  a canal  102  miles  long  with  some  use  of  water  from 
Lake  Michigan  prevailed.  The  Gooding  plan  of  using  the  feeders 
prevailed.  The  bulk  of  the  discussion  which  has  come  down  to 
us  on  the  subject  may  be  arrayed  under  the  head  of  Shallow  Cut 
vs.  Deep  Cut.  The  discussion  of  Engineer  Gooding’s  important 
suggestion  while  in  the  actual  prosecution  of  the  work,  that  the 
canal  be  stopped  at  Lake  Joliet  after  passing  the  point  now  known 
as  Dam  No.  1,  and  improving  the  river  from  that  point  on,  as  pre- 
served in  the  canal  reports,  is  confined  to  the  simple  proposition 
that  the  State  had  acquired  the  immense  land  grant  upon  the  faith 
of  a canal  100  miles  long  and  therefore  the  improvement  of  the 
river  ought  not  to  be  resorted  to.  The  House  supported  Engineer 


501) 


Gooding.  The  Senate  supported  Kngineer  Bucklin.  Bueklin  and 
the  land  grant  prevailed  over  Gooding  and  the  House. 

This  discussion  demonstrates  beyond  cavil  that  Mayor  Benyaurd, 
in  the  Report  of  the  U.  S.  Chief  of  Engineers  for  1884,  was  correct 
in  saying: 

‘^Looking  at  the  matter  from  an  engineering  point  of  view, 
it  is  diiJicuU  to  understand  what  led  originally  to  the  construc- 
tion of  the  canal  rather  than  the  improvement  of  the  natural 
cha/mel  of  the  river/ ^'\ 

The  Act  of  March  2,  1837,  was  passed  as  the  conclusion  of  the 
matter.  It  provided  for  ascertaining  the  water  supply  on  the 
route  ^‘as  now  established’’  (i.  e.,  from  Chicago  to  Peru)  and 
also  for  the  Calumet  feeder.  The  improvement  of  the  river  was 

ignored. 

Pages  144  and  145  is  a description  of  the  Saganaskee  Swamp. 

THE  BED  OF  THE  DES  PLAINES  TREATED  AS  STATE  PROPERTY. 

^Ht  was  found  that  the  Des  Plaines  could  be  safely  turned 
into  its  ancient  channel  below  a low  island  about  a mile  in 
length,  redeeming  by  the  process  some  three  or  four  hundred 
acres  of  land,  and  securing  to  the  State  an  important  town 
site,  which  by  any  other  arrangement,  wouM  have  fallen  on 
individual  property.  Convinced  of  the  ])racticability  of  turning 
and  dyking  the  river  and  that  the  flood  of  water  of  the  Saga- 
naskee  valley  could  be  diverted  into  the  Calamic,  there  was  no 
further  hesitation  in  canceling  the  contracts  on  the  original 
circuitous  route  and  locating  a direct  line  costing  upwards  of 
a hundred  and  twenty  thousand  dollars  less,  and  possess  other 
obvious  advantages  independent  of  the  town  site  which  at  no 
remote  period  must  be  worth  a large  sum  of  money.”  (Canal 
Re]).,  ]).  145.)  (Abst , i).  1887.) 

REFUS.AL  TO  MEASURE  THE  DES  PLAINES  IN  A GOOD]  YEAR. 

‘‘Judge  Wright  arrived  in  Chicago  in  the  early  part  of  Oc- 
tober, and  on  the  20th  of  the  same  month,  Mr.  Burnett  made 
a detailed  report,  with  a topographical  map  and  estimates,  of 
the  quantities  of  excavation  and  other  work  necessary  to  effect 
the  object  on  the  most  favorable  route  of  (which)  the  country 
was  susceptible.  At  that  time  and  through  the  whole  summer 
the  Des  Plaines  River  was  generally  admitted  to  be  unusu- 
ally flush,  as  was  also  the  Calamic.  No  gauges  were  there- 
fore ordered,  and  consequently  those  of  the  Des  Plaines  made 


])y  the  United  States  Engineers  in  3830,  and  of  the  Calamic 
by  Mr.  Bncklin,  were  adopted  as  tlie  basis  of  the  investiga- 
tion.” (Id.,  147.)  (Abst.,  pp.  1887,  1888.) 

GAUGING  IT  IN  THE  DRY  SEASON. 

‘‘The  past  dry  season  rendered  the  measuring  of  the  Des 
Plaines  almost  unnecessary,  since  for  nearly  four  months  the 
tightest  dam  that  could  be  erected  would  not,  at  the  point  of 
taking  out  a feeder,  have  saved  water  enough  to  propel  a sin- 
gle pair  of  ordinary  millstones.  Repeated  gaugings  from  the 
20th  of  July  to  the  22d  of  August,  and  it  was  afterwards  still 
lower,  gave  an  average  of  less  than  the  measurement  of  1830.” 
(Id.) 


SWAMPS. 

“The  fifteen  sections  extending  from  the  Chicago  River  to 
the  ‘Point  of  Oaks,^  eight  miles,  and  lying  through  the  low,  wet 
prairies  periodically  flooded  by  the  Des  Plaines  River  through 
Mud  Lake,  have  been  completely  defended  against  any  possi- 
ble danger  from  surface  water ; and  are  now,  by  means  of  those 
defenses,  accessible  and  tenable  at  any  season  of  the  year.  The 
same  plan  of  drainage  and  defense  is  gradually  progressing 
from  the  ‘Point  of  Oaks^  to  the  Saganaskee  swamp,  and 
enough  has  been  done  to  inspire  the  fullest  confidence  in  the 
practicability  and  moderate  cost  of  the  work.”  (Id.,  148.) 

COST  OF  CONSTEUCTION — ^VALUE  OF  LANDS  EQUAL  TO  COST. 

“It  appears  from  the  estimates  of  the  Chief  Engineer,  as 
will  be  seen  by  an  examination  of  his  report,  that  according 
to  the  contracts  made,  adding  a full  allowance  for  the  light 
sections  not  under  contract,  the  sum  of  $7,621,442.57  will  cover, 
with  very  little  variation,  every  expense  for  a convenient,  sub- 
stantial and  elegant  canal,  such  as  it  ought  to  be  for  commer- 
cial economy,  durability  and  State  character.  The  original 
estimate  of  the  same  engineer,  exclusive  of  the  additions  at 
Ottawa  and  the  enlargement  of  the  basin  in  Chicago,  was 
$8,654,337.51,  being  $1,032,894.94  more  than  will  be  required 
to  complete  the  work.”  (Id.,  151.) 

“In  conclusion,  the  Commissioners  reiterate  the  opinion,  ex- 
pressed in  the  first  annual  report  to  the  Governor,  that  ‘if  these 
lands  and  town  lots  be  very  gradually  and  cautiously  brought 
into  market,  reserving  the  chief  part  until  the  canal  shall  have 
been  completed,  and  all  its  advantages  clearly  understood, 
there  is  more  than  enough  to  build  it  on  the  present  capacious 
and  permanent  plan.  But,  on  the  contrary,  if  sales  be  forced 
and  all  the  lands  be  disposed  of  before  their  true  value  be 


known,  there  cannot  fail  to  be  a deficit  of  several  millions  of 
dollars.  Many  tracts  of  land  that  would  not  bring  more  than 
live  or  six  dollars  per  acre  if  sold  immediately,  may  be  worth, 
a few  years  hence,  from  twenty  to  one  hundred  dollars.  In- 
numerable instances  of  the  kind  might  be  adduced,  some  of 
them  in  the  vicinity  of  the  canal.’  ” 

(Canal  He])ort,  p]).  151-2;  Abst.,  p.  1889.) 

A SEASON  OF  SEVERE  DROUGHT 1838. 

^‘The  value  of  the  water  power  created  here  and  at  other 
points  upon  the  canal,  by  drawing  a supply  of  water  directly 
from  Lake  Michigan,  can  be  fully  appreciated  after  a season 
of  such  severe  drought  as  the  past.  The  Des  Plaines  River 
and  any  other  considerable  streams  of  the  country  have  been 
nearly  dried  up,  and  probably  three-fourths  of  the  water-mills 
throughout  a large  portion  of  the  United  States  have  been 
standing  still  for  the  last  three  months.^ ^ 

(Canal  Re]).,  154;  \bst.,  p.  1890.) 


LOCATION  OF  BASIN  AND  DAMS  NOS.  1 AND  2. 

^‘Lock  No.  4 brings  the  canal  to  the  level  formed  by  the 
pool  of  Dam  No.  1.  A short  distance  below  said  lock,  the 
line  runs  into  the  channel  of  the  Des  Plaines  River,  which 
will  here  be  turned  to  the  right  and  the  whole  of  the  water 
forced  into  the  channel  upon  the  west  side  of  Norman’s 
Island.”  (Id.,  155;  Cv}:st.,  ]).  1891.) 

EMBANKMENT  AT  DRESDEN. 

‘‘From  the  Du  Page  to  Dresden  the  line  has  been  l)ut  slightly 
changed  since  the  first  survey,  but  the  quantity  of  slope  wall 
to  protect  the  canal  at  the  Kankakee  blutfs  has  been  consid- 
erably increased  to  render  the  canal  doubly  secure  at  this 
exposed  point.”  (hi.,  15(h  A!)st.,  p.  1892.) 

[This  is  the  embankment  which  is  threatened  by  the  pro- 
posed dam.  It  was  regarded  as  a danger  point  from  the  be- 
ginning.] 

(from  engineer  Gooding’s  supplemental  report  of  December, 

1838.) 

PROGRESS  OF.  WORK. 

HIGH  WATER  IN  DES  PLAINES THE  STATE  SIDE  DITCH. 

“The  streams  for  a great  part  of  the  year  have  been  very 
high,  particularly  the  Des  Plaines  River;  but  less  interrup- 


lion  to  the  exeeiitioii  of  tlie  woi-k  lias  resulted  from  tliis 
cause  than  might  have  been  anticipated  from  the  unprotected 
state  of  most  of  the  sections;  and  it  has  been  clearly  shown 
that  a defense  can  be  made  at  a moderate  expense,  that  will 
render  the  whole  work  perfectly  secure  during  the  highest 
floods.’’  ((’anal  Mep.,  p.  101  ; Alist.,  p.  1892.) 

THE  STATE  SIDE  DITCH. 

‘‘Considerable  progress  has  been  made  in  the  deep  earth 
excavation  between  the  Chicago  Eiver  and  the  Point  of  Oaks, 
but  there  has  been  so  much  water  upon  the  surface  since 
the  work  was  let,  that  the  side  ditch,  which  is  to  be  formed 
on  the  south  side  of  the  canal  without  the  spoil-bank,  has  not 
yet  been  finished,  nor  but  a small  part  on  the  bank  on  the 
north  side,  which  is  to  guard  against  the  water  that  flows 
from  the  Des  Plaines  Eiver  in  time  of  floods,  and  which  is  to 
be  formed  of  earth  excavated  from  a ditch  within  the  prism 
of  canal.”  (Canal  ( cm.  Kep.,  1900,  p.  lOd  ; Abst.,  p.  1892.) 


OTHER  STATE  DITCHES. 

“During  the  past  year  ditches  have  been  laid  out,  placed 
under  contract  and  partly  executed  from  the  Point  of  Oaks 
to  Chicago  Eiver,  and  from  the  mouth  of  Saganaskee  swamp 
to  Big  Eun;  the  object  of  which  is  to  receive  and  carry  off 
the  water  which  must  otherwise  drain  into  the  canal,  or  ac- 
cumulate behind  the  snoil-banks.  By  the  aid  of  these  ditches, 
the  water  (except  what  falls  behind  the  spoil-banks)  may 
be  effectually  prevented  from  conveying  deposit  into  the  canal, 
and  also  from  interrupting  the  progress  of  the  work  during 
the  construction.”  {('anal  Com.  Rep.,  1900,  p.  163;  Abst.,  pp. 
1892-1893.) 

(from  resident  ENGINEER  TALCOTT^S  REPORT  OF  DEC.  10,  1838.) 

CANAL  OVERFLOWED  BY  RIVER DITCH  TO  CUT  THE  DRAINAGE. 

“Upon  resuming  charge  of  the  line  in  March,  1837,  I found 
nearly  every  section,  one  to  fifteen  inclusive,  was  the  second 
time  offered  for  contract  in  May,  1837.  The  unfavorable  ap- 
pearance of  the  work  (nearly  one-half  of  which  was  over- 
flotved  hy  the  river)  prevented  much  competition,  and  the 
proposals  received  were  considered  much  above  the  real  value 
of  the  work.  Sections  1,  2 and  3 only  were  awarded.  The 
Commissioners  then  determined  to  defend  the  work  by  a con- 
tinuous embankment  on  the  north  side,  formed  by  an  exca- 
vation from  the  prism  of  the  canal,  and  on  the  south  by  a 
ditch  without  the  spoil-bank  to  receive  the  drainage  of  the 


country,  which  is  discharged  into  the  soiitlierinost  l)raricli  of 


(feom  kesident  engineer  wm.  Jerome's  report,  1838.) 

DRESDEN  II ETCH  ITS. 

‘Miiimediately  below  the  aqueduct,  are  located  locks  Nos. 
6 and  7,  with  an  aggregate  lift  of  fifteen  and  a half  feet.  From 
thence  to  Dresden,  a distance  of  five  miles,  the  line  occupies 
nearly  the  ground  of  the  original  location.  The  greater  por- 
tion of  this  distance,  the  canal  passes  at  the  foot  of  the  Kan- 
kakee bluffs;  some  part  of  the  way  in  the  edge  of  the  Des 
Plaines  and  Illinois  Rivers — the  towing  path  bank  to  be  pro- 
tected from  the  great  floods  and  extensive  ice  jams  formed 
by  the  uniting  of  the  waters  of  the  Des  Plaines  and  Kankakee 
Kivers,  by  a strong  mail  on  the  river  sided’  (Canal  Rep.,  pp. 
169-170;  Abst.,  p.  1895.) 

Mr.  Jerome,  Mr.  Bucklin  and  Mr.  Gooding  agreed  with  Mr. 
Cooley,  Mr.  A¥illiams  and  Air.  Kremer  as  to  the  danger  at  this 
point. 

On  pages  185  to  189  is  given  a statement  of  the  damage  from 
a suspension  of  the  work  on  the  canal  in  December,  1839,  conse- 
quent upon  the  financial  depression  of  1837-8. 

On  pages  190  to  197  follows  a fresh  resume  of  the  history  of 
the  project,  of  the  sales  of  lands,  of  the  indebtedness  incurred, 
and  a consideration  of  ways  and  means  of  completion. 

CANAE  vs.  RAILROADS. 

This  (luestion  is  again  considered,  page  191,  by  the  legislative 
committee  of  1841,  with  a preference  for  canals. 


GOV.  ford's  message  dec.  8,  1842. 

RECOMMENDS  COMPLETION. 


RECOMMENDS  CHANGE  TO  HIGH  LEVEL SHALLOW  CUT. 


(Pages  196-197;  Abst.,  pp.  1900-1901.) 

FROM  , ENGINEER  GOODING's  REPORT,  DEC.  1,  1842. 


‘‘Total  cost  of  canal 


$8,007,661.32 


(P..  201.) 

“Total  amount  remaining  to  be  done 


$3,098,169.29 


‘'Tim  first  survey  was  made  in  the  autumn  of  1824,  by  Col- 
onels Post  and  Paul,  under  the  direction  of  Messrs.  Sloo, 
Brown,  West  and  Smith,  Canal  Commissioners.  An  exam- 
ination of  the  reports  of  these  gentlemen  will  show  that,  not- 
withstanding their  ability,  their  survey  and  estimates  did  not 
give  a correct  idea  of  the  obstacles  to  be  overcome  in  the 
construction  of  the  canal.  In  fact,  the  little  that  was  known 
of  the  country  previous  to  the  commencement  of  the  examin- 
ations, and  the  very  imperfect  knowledge  which  the  best  in- 
formed in  this  country  at  that  time  had  in  relation  to  public 
works  of  this  character,  rendered  it  almost  impossible  that 
they  should  have  formed  very  correct  opinions  of  the  magni- 
tude of  the  undertaking.  But  low  as  were  their  estimates, 
it  is  obvious  they  were  higher  than  the  public  expected.  * * * 

THE  SM.VLL  ORIGINAL  ESTIMATED  COST. 

‘ ‘ The  estimates  of  the  five  different  routes  marked  out  were 


as  follows: 

First  route  is  estimated  at $716,110.71 

Second  route  is  estimated  at 639,542.78 

Third  route  is  estimated  at 668,289.68 

Fourth  route  is  estimated  at 682,610.20 

Fifth  route  is  estimated  at 689,746.96 


“On  the  fourth  route  the  supply  of  water  was  to  be  drawn 
in  part  from  Lake  Michigan  and  on  the  fifth,  entirely  from 
this  source;  though  upon  both  plans  of  routes  the  deep  cut 
of  our  present  plan  must  have  been  encountered. 

“The  canal,  as  estimated  above,  would  have  been  two  feet 
in  depth,  and  twenty  in  width,  less  than  our  present  canal 

VOLUMES  OP  WATER  IN  THE  RIVERS. 

“The  gauges  of  the  different  streams  from  which  a supply 
of  water  would  have  been  drawn,  are  given  as  follows,  to 

wit: 

Des  Plaines  River  at  Cache  Island ....  117,000  feet  per  hour 

Du  Page  River 114,000  feet  per  hour 

Aux  Sable  River 50,000  feet  per  hour 

Fox  River  450,000  feet  per  hour 

“The  engineers  remark  in  relation  to  these  gauges  that  the 
‘results  are  predicted  upon  the  present  stage  of  water,’  and 
that  the  quantities  may  sometimes  be  lower.”  (Page  202.) 
(Abst.,  p.  1904.) 

SHALLOW  CUT  VS.  DEEP  CUT ENGINEER  GOODING  ON. 

“The  contest  in  the  winter  of  1836-7  closed  by  the  passage 
of  a law  authorizing  the  Canal  Commissioners  to  prosecute 


the  work  on  the  present  plan,  but  requiring  them  to  procure 
a skillful  engineer  from  abroad  to  examine  and  report  whether 
‘a  supply  of  water  from  sources  within  the  legitimate  author- 
ity of  the  State  of  Illinois’  could  be  produced  without  resort- 
ing to  the  lake,  or,  in  other  words,  whether  a shallow  cut,  or 
high  level  canal  could  he  supplied  with  water.  * * 

^^It  was  supposed  that  there  was  nearly  or  quite  canal  prop- 
erty enough  to  complete  it  upon  the  deep  cut  plan,  and  so 
long  as  the  State  could  procure  the  money  to  carry  on  the 
work  little  solicitude  was  felt  as  to  the  plan,  though  it  was 
still  believed  by  many  that  it  should  have  been  changed,  or 
that  the  high  level  should  have  been  adopted  at  the  outset.” 
(Page  203;  Abst.,  p.  1905.) 

LOSS  OF  WATER  TRAITSFERRED  TO  CANAL  BY  FILTRATION,  LOCKAGE, 
LEAKAGE  AND  EVAPORATION. 

‘‘I  have  calculated  no  loss  by  filtration  from  Chicago  Kiver 
to  section  64,  because  I have  supposed  that  the  canal  upon 
the  high  level  will  be  sunk  so  low  that  the  surface  of  the 
water,  in  all  cases,  will  be  below  the  natural  surface  of  the 
ground  and  on  a level,  for  most  of  the  distance,  as  low  as 
the  surface  of  the  Des  Plaines  River.  The  soil,  too,  and 
the  rock  through  which  the  excavations  are  made,  are  of 
such  a character  that  no  danger  need  be  apprehended  that 
any  water  will  leak  out  or  be  absorbed  on  this  portion  of  the 
work.  The  evaporation  is,  in  reality,  almost  too  small  an 
item  to  be  taken  into  the  account  at  all,  but  it  is  mentioned 
because  it  is  usually  estimated  in  computing  the  demand  for 
water  upon  canals. 

‘‘But  the  evaporation  upon  the  whole  of  our  canal,  calcu- 
lating the  length  at  ninety^six  miles,  and  the  ividth  at  sixty 
feet,  would  be  but  264  cubic  feet  per  minute,  estimating  the 
evaporation  during  a season  of  navigation  of  240^  days  to  be 
three  feet  (which  is  about  the  average  annual  evaporation  in 
this  country),  or  it  would  be  less  than  three  cubic  feet  per 
minute  per  mile. 

“The  leakage  at  the  lock  gates  will  be  but  a small  item,  if 
the  work  be  properly  executed,  and  the  allowance  made  is 
undoubtedly  sufficient. 

“In  calculating  the  amount  of  lockage  water  necessary,  I 
have  estimated  water  sufficient  to  fill  the  locks  (one  of  eight 
and  of  ten  feet  lift)  one  hundred  times  in  every  twenty-four 
hours.  But  it  is  not  probable  that  this  amount  of  water  will 
be  necessary  for  the  passage  of  100  boats.  As  nearly  an 
equal  number  of  boats  must  pass  each  way  during  the  season 
of  navigation,  it  is  obvious  that  the  chances  are  nearly  equal 


that  a single  lock  full  of  water  would  pass  one  boat  up  and 
another  down.  Or,  in  other  words,  it  is  as  likely  that  the 
two  boats  will  meet  passing  in  opposite  directions,  as  that 
one  will  closely  follow  another  going  in  the  'same  direction.  It 
is,  therefore,  possible  that  the  quantity  of  water  estimated  for 
100  lockages  across  the  summit,  would  be  sufficient  to  pass  150 
boats. 

“Gauges  of  Calumet  River  by  U.  S.  Engineers,  17,281  per 
minute.  By  Bucklin,  5,333  per  minute. 

S.  Des  Plaines  River,  Post  and  Paul,  1950.  (1,950  per 

minute,  117,000  per  hour.)  By  Bucklin,  1,000.  (1,000  per 

minute,  60,C00  per  hour.) 

“S.  Bu  Page  River,  U.  S.  Engineers,  1,655.  By  Bucklin, 
6,916  per  minute. 

“The  aggregate  minimum  discharge  of  the  three  rivers 
would  then  be  shown  thus: 

“Calumet,  5,333;  Des  Plaines,  1,000;  Du  Page,  1,665,  equals 
7,998  cubic  feet  per  minute.”  (Page  204;  Abst.,  pp.  1906-1907.) 

“The  construction  of  the  perfectly  water-tight  dam  at 
Joliet  has  enabled  us  to  ascertain  with  precision  the  quantity 
of  water  flowing  in  the  Des  Plaines.  This  river  has  been 
nearly  dried  up;  the  measurement  on  the  20th  of  September 
showing  338  cubic  feet,  and  on  the  21st  of  the  same  month  373 
cubic  feet  per  minute. 

‘ ^ The  quantity  of  water  in  all  these  streams  continue  to  di- 
minish till  the  last  of  November,  when  the  probable  quantities 
would  have  been  about  as  follows,  to  wit: 

In  the  Calumet  River  5,300  cubic  feet  per  min. 

In  the  Des  Plaines  River 200  cubic  feet  per  min. 

In  the  Du  Page  River 1,888  cubic  feet  per  min. 


Total 7,300  cubic  feet  per  min. 

“The  necessary  quantity  of  water  to  supply  the  canal  from 
Chicago  to  Marseilles  is  9,924  cubic  feet  per  minute.  This 
would  show  a deficiency  of  2,624  cubic  feet  per  niinute,  ad- 
mitting that  all  the  water  coidd  he  turned  into  the  canal.  There 
will  be  some  loss  at  the  dam  at  the  Calumet  and  upon 
three  or  four  miles  of  the  feeder,  and  also  at  the  Du  Page 
dam.  It  would,  however,  be  safe  to  calculate  that  there  could 
be  introduced  into  the  canal  from  these  rivers  the  following 
quantities,  to  wit: 

From  the  Calumet  River  4,500  cubic  feet  per  min. 

'From  the  Des  Plaines 200  cubic  feet  per  min. 

From  the  Du  Page  1,600  cubic  feet  per  min. 


Total  supply 6,300  cubic  feet  per  min. 

Total  supply 9,924  cubic  feet  per  min. 


Total  deficiency 


3,624  cubic  feet  per  min. 


517 


‘‘There  would  not,  it  is  true,  l)e  so  lar^^e  a deficiency  except 
in  extraordinary  dry  seasons,  and  in  most  seasons  probably 
none  at  all/^ 

(It  will  be  observed  that  in  the  foregoing  figures  the 
engineer  has  based  his  computation  on  the  proposition, 
'' admitting  that  all  the  ivater  could  be  turned  into  the 
canal/ ^ He  sees  that  there  may  be  some  trouble  about 
getting  the  whole  of  the  Calumet  and  the  whole  of  the 
Du  Page,  but  makes  no  allowance  for  any  failure  to  get 
the  whole  of  the  Des  Plaines.  This,  he  is  certain  he  can 
get  because  of  “the  construction  of  the  perfectly  water 
tight  dam  at  Joliet.’’) 

On  pages  205  to  208  follows  a narration  of  the  passage  of  the 
Act  of  February  21,  1843,  entitled  “An  Act  to  provide  for  the 
completion  of  the  Illinois  and  Michigan  Canal,  and  for  the  pay- 
ment of  the  canal  debt;.”  under  which  the  entire  property  of 
the  canal  was  mortgaged  to  Canal  Trustees;  together  with  the 
supplemental  Act  of  March  1,  1845;  and  the  election  and  appoint- 
ment of  trustees. 

At  pages  209,  210,  is  set  out  a report  of  the  Board  of  Trustees 
November  30,  1848,  recording  the  completion  of  the  canal  and 
reciting  that  the  cost  of  the  Kankakee  feeder  was  $84,573.29,  and 
that  the  pumping  engines  were  built  and  used  from  the  beginning. 
These  engines  operated  the  original  “lift-wheels”  for  lifting 
water  from  the  Chicago  Eiver  into  the  canal  level.  (See  Cooley, 
Ex.  3,  p.  7.)  (See  also  |)reanib1e  to  Deep  Cut  Act  of  1805,  Canal 
Comp.,  p.  130.) 

On  page  219  is  a description  of  the  work  done  on  the  feeder, 
and  an  estiyiate  of  the  cost  at  $50,000. 

“The  90-foot  reserve  was  surveyed  in  1848  l)y  iVrtemus  J. 
Mathewson,  a plat  was  made  of  the  feeder  and  reserve  and 
appear  in  the  pJat  book  number  2,  Canal  Kecords. 

“The  total  cost  approximated  verv  nearlv  $50,000.”  (Page 
219;  Al)st.,  ]).  1912.) 

“In  the  years  1847  and  1848,  Artemus  J.  Mathewson,  a sur- 
veyor and  engineer,  under  the  authority  and  direction  of  the 
Canal  Trustees,  surveyed  and  marked  the  lines  of  the  90-foot 
strip  on  each  side  of  the  canal  from  one  end  thereof  to  the 
other  and  jDrepared  and  filed  in  the  office  of  the  Board  of 
Trustees,  ma])s  and  profiles  of  said  survev.”  (Page  229;  Abst., 
p.  1913.) 


518 


In  1861  the  Legislature  authorized  tlie  Canal  Trustees  to  con- 
tract with  tlie  City  for  pumping  and  the  (hty  built  and  operated 
the  Bridgeport  pumping  works. 

'In  1865  the  Deep  (hit  Act  was  passed  and  June  15,  1871,  it  went 
into  operation,  and  the  use  of  the  Bridgeport  pumps  was  sus- 
pended. (Gov.  Bross,  ‘^History  of  (Jiicago,’’  p.  38,  Ev.  of  Cool- 
ey, Abst.,  p.  824.) 

A new  system  of  pumps,  known  as  ‘‘The  (/anal  Pumping  Works,” 
was  put  in  by  the  City  of  Chicago  in  1881-1886.  (Report  of  Chi- 
cago Department  of  Public  Works,  pp.  36-51.) 

VI. 

DEPTHS^  SLOPES  AND  PHYSICAL  CONDITIONS  OTHER  THAN  STREAMS  AS 
STANDARDS  OF  COMPARISON. 

MISSISSIPPI  RIVER. ROCK  ISLAND  RAPIDS. 

The  evidence  of  several  of  the  witnesses  referred  to  other 
streams  of  well-known  navigability  as  standards  of  comparison. 

One  such  is  the  Mississippi  at  the 

ROCK  ISLAND  RAPIDS. 

AY.  R.  Tibbals,  the  Upper  Mississippi  Pilot  and  Government 
Inspector  of  steam  vessels,  testified  of  this  (Abst.,  636)  : 

“Since  1855  I have  navigated  the  Mississippi,  the  St.  Croix, 
the  Iowa  or  Des  Moines,  the  AVisconsin  and  the  Chippewa 
(Abst.,  634.) 

In  1855  the  Mississippi  was  low.  For  about  30  miles  we 
had  26  or  27  inches  on  the  Mississippi.  Boats  ran  there 
that  were  drawing  for  12  inches  to  34  feet.  Some  vessels 
draw  12  inches  unloaded;  others  34  feet  unloaded.  The  boat 
that  drew  12  inches  unloaded  would  carry  80  tons  of  freight. 
It  would  be  from  120  to  130  feet  long  and  30  feet  broad,  and 
draw  when  loaded  3 to  34  feet  of  water.  The  larger  boat 
would  carry  900  tons  and  draw  64  feet,  and  be  235  feet  long 
and  37  feet  beam  (Abst.,  635). 

I ran  the  Enterprise  Steamer  in  1852  up  the  AVisconsin 
River.  It  drew,  light,  8 to  10  inches,  and  loaded  28  to  30 
inches,  and  carried  ordinarily  60  to  80  tons  (Abst.,  635). 

The  boats  on  the  Iowa  River  drew  from  12  to  18  .or  20  inches 
(Abst.,  636).  The  boat  pushed  2 barges,  one  on  each  side. 


■)\l) 

lo  \\vv  s()iii(‘\vlial  I'oi’wa rd.  'rii(‘v  would  carr-y  1,000 
saoks  of  sliolk'd  (‘oni  on  eacdi  har^o  and  1,000  on  tin;  hoat. 
Tlio  boat  llien  drew  dl  imlies  and  the  barges  would  not  draw 
'2  feet. 

1 have  (*arried  on  eonnnereial  navigation  on  the  Mississippi 
on  14  inches  (Abst..  blh)).  I remember  the  Moline  eliain 
of  rapids  from  Rock  Island  to  LeClaire, — about  15  miles 
opposite  Moline  the  steamboat  men  speak  of  it  as  tlie  swift- 
est water  on  the  river.  The  rate  of  the  current  would  be 
from  ()  to  9 miles  per  hour  depending  on  the  state  of  the 
water;  6 miles  per  hour  when  slowest  and  up  to  nine.  The 
United  States  Government  has  improved  that  chain,  but  I 
navigated  through  there  before  there  was  any  improvement 
made.  I never  knew  of  a boat  that  (Abst.,  686)  tried  to 
get  through  and  did  not.  At  the  same  time  I have  known 
them  to  have  to  lay  the  anchors  and  work  themselves  through. 
They  anchored  and  cordelled  through  before  the  improve- 
ment was  made. 

In  cordelling  they  come  up  to  the  foot  of  the  chain  and 
anchor  the  boat  and  then  scud  out  a yawl  with  an  anchor  as 
far  as  the  chain  would  reach  and  throw  the  anchor  over, — 
usually  a 600-pound  anchor — and  it  would  catch  in  the  bottom 
of  the  stream  and  then  take  a ])ull  on  the  ca])stan  and  ])ull 
the  boat  up  and  repeat  the  o])eration  till  she  worked  through 
the  chain.  That  was  in  customary  use  iu  ])assing  the  ^loline 
chain  on  the  Mississi])])i.  1 have  done  that  on  the  lower 
rapids  at  Keokuk  before  the  (loverument  built  the  canal.” 
(Abst.,  687.) 

was  connected  with  the  United  States  Kngineer’s  ollice 
at  Rock  Island  for  seven  years.  I was  navigating  over  the 
rapids  and  1 was  with  them  and  heard  the  conversations  in 
the  office  and  heard  tlie  engineer  that  was  at  work  on  the 
ra])ids.  I have  double  tri])ped  a good  many  times  over  the 
rapids  to  get  my  fleet  ovei*  it;  towed  i)art  of  the  load  and  went 
back  and  got  the  other  part  (Abst.,  689). 

They  have  been  at  work  on  the  improvement  since  about 
1877.  It  never  was  dangerous  or  im])ossible  to  navigate 
the  rapids;  we  always  got  over  the  rapids — of  course  there 
is  more  water  now  they  have  increased  the  de])th  of  the 
water  (Abst.,  689).” 

Governor  Samuel  R.  Vim  Sant  (of  Minnesota)  (Abst.,  ]).  854  to 
p.  870) : 

‘Mlave  lived  in  Minnesota  25  years,  was  (Jovernor  two 
terms.  Before  going  to  Minnesota  I lived  in  Davenport,  Iowa, 
and  Rock  Island,  Illinois.  I am  in  the  transportation  business 
on  the  Mississi])y)i  and  have* been  actively  so  and  as  an 
owner  of  boats  since  1870,  and  before  that  in  a boatyard  build- 
ing and  repairing  steamboats  at  IjeChaire,  town,  and  at  Ro(*k 


Island,  Illinois.  My  i'atlier  was  in  the  business  of  nianufac- 
luring  and  repairing  stean;.boats  tliere  for  many  years.  I 
Jiave  been  licensed  both  as  pilot  and  master  on  the  Missis- 
sip])i  by  tlie  United  States  Government.  My  first  trip  was  in 
1857  and  I have  been  continuously  engaged  in  j^iloting,  oper- 
ating, manufacturing  and  repairing  steamboats  on  the  Mis- 
sissi])pi  from  that  time  to  the  present  (Abst.,  854).  I am 
now  connected  with  the  Van  Sant  Navigation  Company  and 
the  Carnival  City  Packet  Company.  They  own  and  operate 
10  steamboats  on  the  Mississippi.  My  companies  have  owned 
50  to  40  l)oats  during  my  time  on  the  river.  1 have  made 
from  500  to  1,000  trips  on  the  Mississippi  boats,  sometimes 
make  25  trips  in  a season. 

I remember  we  made  the  James  Lyon  in  1869, — 160  feet 
long,  32  feet  beam,  draft  26  to  30  inches,  which  carried  corn 
from  Fulton,  Illinois,  to  Minneapolis.  That  was  customary 
form  of  traffic  on  the  river  then.  Navigation  stopped  from 
November  15  to  April  1.  (Abst.,  856.)  In  certain  seasons 
when  the  water  was  low  boats  of  heavy  draft  could  not  run. 
It  would  be  2 to  3 months  quite  frequently  that  navigation 
would  be  suspended.  (74  months  of  open  season,  less  3 
months  of  low  water  would  leave  44  months  of  navigation.) 

Quite  frequently  in  those  years  during  the  season  of  low 
water  it  was  impossible  to  navigate  on  account  of  bars  and 
rapids  and  other  obstructions  when  the  water  was  low  (Abst., 
856).  Navigation  would  be  interrupted  because  the  water 
was  low,  for  two  months  on  the  average.  I have  seen  it 
interrupted  for  more.  In  1864  w^e  couldn’t  run  at  all.  That 
was  known  as  the  ^Low  Water  Season.’  Navigation  was 
practically  suspended  except  for  very  light  draft  boats  prac- 
tically the  whole  season  (Abst.,  857).  The  little  boats  would 
run  from  intermediate  points.  The  upper  river  would  be  low 
and  some  of  the  big  boats  would  go  up  to  certain  points  and 
the  little  boats  would  then  take  their  passengers  and  freight 
on  above. 

Quite  frequently  the  boats  would  go  up  to  Hastings,  Min- 
nesota. The  river  from  Hastings  up  was  a very  bad  piece 
of  river.  The  water  was  low  and  the  big  boats  could  not  go 
all  the  way  and  they  would  connect  with  the  smaller  boats  and 
still  that  would  make  the  through  trip.  They  would  take  the 
passengers  and  freight  up  to  St.  Paul  and  then  bring  passen- 
gers and  freight  back  to  St.  Louis.  From  Hastings  to  St. 
Paul  is  30  miles  (Abst.,  857). 

The  'Cheever’  was  a boat  we  had  that  was  in  the  business 
of  taking  trans-shipments  from  large  boats  at  Hastings  and 
carrying  them  to  St.  Paul.  It  drew  16  to  18  inches  at  tlie 
stern ; was  a stern  wheel,  flat  bottom  boat.  A stern  wheeler 
draws  more  at  the  stern  than  bow;  and  we  frequently  put 


1^0  or  .')()  ions  oil  lli(‘  bout  and  she  vvoiild  draw  no  more  Ilian 
when  enipiy  (Ahst.,  857). 

The  "Phil  Sheckcd’  was  a stern  wlieel  steamer  on  the  upper 
I’iver;  it  was  110  feet  Jong,  20  feet  beam,  14  to  15  inches  draft. 

It  was  built  to  run  up  the  Chippewa,  wliieli  is  a very  scanty 
stream  of  water.  The  water  was  very  scanty — she  ran  up 
to  Kau  Claire  to  carry  up  men  who  floated  the  rafts  down, 
and  their  freight,  kitchen,  etc.  They  find  14  inches  on  the  , 
Chippewa  at  certain  stages  of  the  year.  Sometimes  it  would 
get  so  low  that  that  boat  could  not  run  because  the  river 
would  iu*etty  near  go  dry,  but  when  there  was  a great  rise 
on  the  river,  sometimes  500,000,000  feet  of  lumber  would 
come  down  that  river  in  a year  (Abst.,  858).  They  would 
have  to  wait  till  a freshet  or  a rain  came.  I afterwards  owned 
the  Phil  Sheckel.  I used  it  for  about  5 years  on  the  Missis- 
sippi for  several  years  as  a bowboat  towing  rafts  two  at 
a time.  The  bowboat  points  the  course.  We  sold  it  and  it  is 
now  at  Miami,  Florida,  building  the  railroad  from  Miami  to 
the  Keys.  It  went  there  with  its  own  power  down  the  Mis- 
sissippi and  crossed  the  Gulf  1,200  miles  out  into  the  Gulf  in 
safety  (Abst.,  858). 

The  ^Jeanette  Rohar’  was  a boat  on  the  upper  Missis- 
si])pi.  IMy  father  Imilt  her.  It  was  a very  light  large  draft  lioat. 
She  was  150  feet  long,  30  feet  beam,  draft  18  to  20  inches.  She 
carried  freight  on  the  Minnesota  Kiver.  It  was  very  desir- 
able in  those  days  to  have  light  draft  lioats  that  would 
navigate  as  long  as  they  possibly  could.  This  boat  was  built 
especially  for  that  trade.  They  carried  on  successful  com- 
merce on  them.  It  was  customary  in  the  boat  yards  on  the 
Mississippi  then  to  build  boats  especially  adapted  for  these 
shallow  tributaries. 

The  ‘Bes  Moines  Valley^  was  a boat  T remember  that  was 
built  at  Pock  Island  and  was  used  on  the  Pes  Moines  in  the 
early  days. 

Tlie  ‘Black  JJawk’  I remember  very  well;  my  father  built 
her.  She  was  a little  boat  built  purposely  to  run  up  Pock 
Piver.  She  was  100  feet  long,  22  feet  wide,  draft  10  inches. 
The  old  bridges  on  Pock  Piver  had  draws  then.  She  would 
carry  40  to  50  tons  (Abst.,  859). 

The  ‘Enterprise/  I remember  very  well.  She  was  first 
operated  on  the  Mississippi  below  St.  Paul  and  was  after- 
wards taken  around  the  falls  of  St.  Anthony  by  land  for  7 
miles  on  wheels  and  skids  with  lilock  and  tackle,  and  navi- 
gated on  the  Mississippi  above  the  falls.  She  was  just  about 
in  the  class  of  the  ‘Cheever’  if  not  lighter. 

^Wood-boats’  are  in  use  on  the  Mississippi.  They  are  flat- 
bottom  boats  with  scow  bows  and  propelled  with  poles.  They 
used  to  go  up  the  creeks  and  rivers  and  get  wood  and  bring 
it  out  to  the  Mississippi.  They  are  in  use  yet.  (Abst.,  859.) 


The  ‘Silas  Wright’  I reiiieiiihei'  very  well,  it  was  used  on 
the  (diippewa.  ddiey  foinid  she  was  too  heavy  draft  and  so 
they  built  two  hulls,  ])ut  one  on  ea(‘li  side  of  her  and  rigidly 
fastened  them  to  the  boat  to  bring  her  up,  and  she  success- 
fully navigated  the  river  tliere  for  years  at  a depth  of  12  or  14 
()i‘  1()  inches  of  water.  She  was  originally  built  so  she  would 
likely  draw  18  or  20  inches  of  water. 

The  ‘Lady  Van  Sant’  1 rerneniber.  She  was  a light  draft, 
bow-boat  105  feet  long,  24  feet  wide  and  20  inches  draft. 

The  ‘Hamlet’  I remember  was  a boat  used  in  tlie  same  on 
the  Mississipy:)i  and  these  other  tributaries.  She  was  2 feet 
wider  than  the  ^Lady  Van  Sant.’ 

The  ‘Keokuk’  we  built  last  year:  She  made  her  first  trip 
this  S])ring.  She  is  140  feet  long,  30  feet  beam  and  carrying 
20  tons,  draws  24  to  20  inches.  (Abst.,  860.) 

There  is  very  swift  water  on  the  lower  rapids  of  the  Mis- 
sissippi, but  the  swiftest  water  I know  of  is  on  the  Moline 
Chain.  (Abst.,  860.)  Tim  Government  has  done  consider- 
able work  improving  the  Moline  Chain.  They  have  built  a 
canal  so  as  to  obviate  going  through  that  chain  for  all  time 
to  come,  so  as  to  avoid  going  up-stream  through  this  swift 
water.  Our  boats  were  chartered  to  the  contractors  and  were 
on  that  work  almost  constantly.  I was  in  daily  or  frequent 
contact  'with  the  engineers  carrying  on  the  work.  Before  the 
improvements  were  made  navigation  was  carried  on  up-stream 
against  this  swift  current.  In  certain  stages  of  water  certain 
boats  would  have  to  work  over  the  chain  especially  the  Moline 
Chain  (Abst.,  862).  A boat  would  come  up  into  the  chain 
in  the  swift  water  as  fast  as  she  could.  She  would  either 
he  anchored  there  or  hold  herself  there  with  her  power  and 
they  would  put  a coil  of  line  and  an  anchor  out  in  a yawl 
that  would  go  to  the  side  where  the  current  was  not  so  swift 
and  they  would  go  up  to  this  point  and  cast  their  anchor 
and  drift  right  down  with  the  line  and  put  the  line  on  the 
steam  capstan  and  wind  up  the  line.  That  was  quite  a common 
practice  in  passing  the  Moline  Chain.  They  used  that  on  the 
Moline  Chain  from  the  earliest  navigation  until  say  ’68  or  ’70, 
when  the  first  improvement  in  the  channel  was  made. 

The  channel  through  the  Rock  Island  Rapids  is  about  200 
feet  wide.  That  has  been  made  by  coffer-dams.” 

Rock  Island  Rapids 
from 

SuK\mY  OF  Lt.  Robert  E.  Lee, 

Dec.  6,  1837. 

‘Mvock  River  Rapids — The  upper  or  Rock  River  rapids,  dis- 
tant about  150  miles  from  the  Des  ^loines,  commence  14 
miles  above  Rock  Island  and  extend  to  its  foot.  Within  this 
distance  the  Mississippi  falls  25.740  feet,  descending  over  a 


rocky  bed,  broken  l)y  reel's,  wlii(‘li  at  some  points  reach  (m- 
tirely  across  tlie  river,  affording-  at  low  water  a shallow  chan- 
nel, and,  projecting  at  others  from  oi)posite  sides,  interlock 
and  form  a winding,  difficult,  and  dangerous^  t)assage.  The 
fall  of  the  ]*iver  is  not  regular,  but  like  that  at  the  lower 
rapids,  is  greater  over  the  reefs,  and  less  in  the  intermediate 
pools  formed  in  like  manner  by  them. 

“The  velocity  of  the  current,  varying  with  descent,  and 
continually  checked  by  the  rough  bed  of  the  river,  the  winding 
of  the  channel  and  the  projection  of  the  reefs,  though  not  as 
great  as  the  fall  would  indicate,  is  still  rapid  and  in  many 
places  difficult  to  stem. 

“By  an  examination  of  the  map  you  will  see  that  the  main 
channel,  worn  by  the  action  of  the  water,  is  so  distinctly 
marked  that  there  can  be  no  doubt  as  to  the  best  mode  of 
improving  it.  The  depth  of  water  is  generally  sufficient,  and 
the  difficulty  consists  in  the  short  turns  and  narroiv  passes 
between  the  reefs,  which  oblige  boats  to  cross  the  current 
obliquely  and  incur  the  danger  of  being  forced  on  the  rocks. 
The  descending  boats,  swept  along  by  the  current,  run  the 
greatest  risk,  and  the  turns  ought  to  be  so  regulated  as  to  re- 
lieve them  as  far  as  possible.  By  cutting  off  the  projecting 
points  of  'some  of  the  ledges,  and  excavating  through  others, 
this  danger  will  be  avoided,  and  a safe  passage  fonned. 

“In  the  upper  section,  called  the  Sycamore  Chain,  it  will 
be  necessary  to  cut  off  the  sharp  angle  at  A,  excavate  through 
the  ledge  at  B,  and  straighten  the  channel  at  C,  1)  and  K by 
cutting  off  the  points  as  indicated  on  the  drawing. 

“From  the  foot  of  this  chain  there  is  a stretch  of  2 miles 
free  from  all  obstructions  to  the  head  of  Cam]h)ell’s  Island, 
just  below  which  it  will  be  necessary  to  excavate  through  the 
reef  to  the  depth  of  about  18  inches;  to  cut  off  the  point  of 
the  reef  at  fl,  extending  from  the  western  shore  toward  the 
small  island  at  the  foot  of  Campl)eirs;  excavate  through  the 
reef  at  L,  making  out  from  the  eastern  shore  just  above  the 
mouth  of  Duck  Creek,  and  cut  off  the  point  of  that  at  IM; 
all  of  which  is  indicated  on  the  map.  This  will  open  a free 
passage  to  the  head  of  Bock  Island,  the  commencement  of  the 
lower  chain,  from  which  a flat  reef  extends  to  the  Wisconsin 
shore,  and  through  which  a channel  200  feet  wide,  25  feet 
deep,  and  400  yards  long  will  have  to  be  excavated.  The 
only  other  part  to  be  improved  is  in  the  bend  below,  whore 
the  channel  passes  between  two  reefs  projecting  from  o])po- 
site  sides  of  the  river.  By  cutting  off  the  point  of  that  on 
the  west  all  obstructions  will  be  removed  to  the  foot  of  Bock 
Island.  * * * Pile  removal  of  the  obstructions,  in  both 
rapids,  at  the  several  points  named  will  require  an  excavation 
of  172,000  cubic  yards  through  the  solid  rock. 

“The  difficulty  attending  such  an  operation  under  water. 


wliicli  must  be  performed  by  blasting,  is  much  increased  by 
the  rapid  current  of  tlie  Mississippi;  the  unexpected  rise  to* 
Avliich  it  is  subject  and  the  short  season  of  operations.  * * * 

►So  much  depends  upon  circumstances  that  can  neither  be 
foreseen  nor  controlled  that  the  estimate  presented  of  the 
l)robable  cost  of  the  work  must  only  be  considered  conjec- 
tural.^^ 

U.  S.  Engineer’s  Keports,  1886,  Vol.  Ill,  pp.  1436-7.  (Abst., 
pp.  1616-1617.) 


Kock  Island  Eapids 
from 

SUKVEY  OF  Lt.  G.  K.  WaKEEN, 

1853.  ^ .. 

‘ ^ The  instructions  required  such  surveys  at  the  lower  rapids 
(Des  Moines),  and  at  the  upper  rapids  (Eock  Island),  as 
were  necessary  to  determine  the  best  and  most  economical 
route  along  the  bed  of  the  river  for  forming  a continuous 
navigable  channel,  200  feet  wide  and  4 feet  deep  at  the  low- 
est stages.  * * * 

‘‘Upper  Eapids. — These,  beginning  at  half  a mile  above  the 
lower  end  of  Eock  Island,  extend  13  miles  up  the  river.  The 
principal  reefs  are  known  as  Lower  Chain  (at  foot  of  rapids), 
Eock  Island  Chain  (2  miles  from  foot).  Duck  Creek  Chain  (44 
miles  from  foot),  Campbell’s  Chain  (74  miles  from  foot), 
Saint  Louis  Chain  (10  miles  from  foot).  Sycamore  Chain  (12 
miles  from  foot),  and  Upper  Chain.  Unobstructed  spaces 
intervene  between  these  chains,  the  greatest  being  2 miles, 
between  Campbell’s  and  Saint  Louis  chains. 

“Much  of  the  rock  is  a very  friable  limestone,  and  when 
quarried  breaks  up  in  the  smallest  pieces.  A very  soft  yellow 
sandstone  is  also  common  and  a little  slate.  Large  granite 
boulders  are 'found  in  many  places. 

“Owing  to  the  softness  of  the  rocks  composing  the  reefs, 
they  have  been  much  more  worn  away  and  dislocated  by  the 
ice  and  currents  than  at  the  lower  rapids,  and  do  not  form 
as  great  an  obstruction.  Small  steamboats  drawing  24  feet 
of  water  pass  them  at  the  lowest  stages  towing  their  barges. 
The  navigation,  however,  is  attended  with  great  risk,  and 
every  year  that  has  loiv  water  sees  several  steamboats  sunk 
and  others  seriously  injured. 

“Duck  Creek  and  Campbell’s  chains  are  particularly  dan- 
gerous. The  current  is  moderate  a’t  both  (about  3 miles  per 
hour),  but  the  boat  to  avoid  the  prominent  rocks  is  required 
to  make  such  sudden  turns  as  cannot  often  be  performed, 
especially  by  stern-wheel  boats. 

7;*  method  of  improving  the  upper  rapids 

is  to  remove  the  rocks  that  now  obstruct  the  channel  and 


525 

close  some  of  the  side  chutes  wliose  tendency  is  to  produce 
(*ross-cuvrents.’’ 

V.  S.  Kni>ineer’s  Keports  1885,  Vol.  Ill,  pp.  1458-9.  (Abst., 
])p.  1705-1704.) 


liocK  Island  Eapids 
from 

SuKVEY  BY  CaPT.  P.  C.  HaTNS. 

1886 

‘‘The  Upper  or  Eock  Island  Kapids  begin  at  a point  near 
the  lower  end  of  Eock  Island,  and  extend  14.26  miles  up  the 
river  to  a point  near  the  lower  end  of  the  town  of  Le  Claire. 
The  bed  of  the  river  throughout  this  entire  distance  consists 
of  a hard  surface  of  limestone  rock,  worn  in  many  places  into 
deep  furrows  by  the  long-continued  action  of  the  water  and 
the  material  washed  along  the  bottom.  This  rock  crops  out 
along  the  shores,  and  is  generally  found  stratified  in  thin 
layers.  The  lower  strata  in  the  bed  of  the  river  appear  to  be 
harder,  and  of  different  thicknesses — from  4 inches  to  2 feet 
and  upward.  There  are  also  a number,  of  large  erratic  bould- 
ers of  granite  to  be  met  with,  but  these,  as  a general  thing,  do 
not  prevent  serious  obstructions,  but  in  some  cases,  as  at 
Campbell’s  Chain,  they  rather  serve  as  guide-marks  for  pilots, 
who  would  protest  against  their  removal  on  that  account,  un- 
less replaced  by  other  equally  permanent  marks. 

“The  only  difficulty  in  the  way  of  navigating  the  rapids 
consists  in  passing  over  the  chains,  of  which  there  are  7,  viz.: 
The  Upper  or  Smith’s  Chain,  Sycamore,  Saint  Louis,  Camp- 
bell’s, Duck  Creek,  Moline  and  Lower  Chains.  At  these  places 
the  rocky  bed  of  the  river  projects  out  from  each  shore  like  a 
bar,  the  projecting  points  sometimes  over-lapping  each  other, 
leaving  only  a narroiv,  tortuous  channel  between  them, 
and’  in  some  instances  extending  like  a dam  or  rocky  bar  en- 
tirely across  the  river.  Between  the  chains,  throughout  almost 
the  entire  distance,  is  a wide  and  navigable  channel,  with 
plenty  of  water  for  boats  that  navigate  the  upper  Mississippi, 
and  at  such  places  the  velocity  of  the  current  is  much  less  than 
on  the  chains. 

“Between  the  head  and  foot  of  the  rapids,  a distance  of  a 
little  more  than  14  miles,  nearly  11  miles  are  good  navigation 
in  the  lowest  stages,  the  obstructed  portion  covering  a dis- 
tance of  only  a little  more  than  5 miles. 

“The  steamboat  channel,  beginning  at  the  head  of  the  rapids 
runs  in  close  to  the  Iowa  shore,  with  plenty  of  water  till  it 
strikes  the  upper  chain,  generally  called  by  pilots  Smith’s 
Chain;  here  the  channel  is  narrow,  crooked,  and  flie  current 
swift,  having  a velocity  of  more  than  3 miles  an  houjc.  A 
large  reef  or  rocky  bar,  known  as  Asprey  Patch,  stands  in 


) 


tli(‘  nii(l(ll(‘  of  wluit  would  otliei'wiso  lx;  a wide  (;liaiiuel.  This 
('liaiii  is  not  ('onsid(‘rcMl,  liowever,  as  difficult  oi'  dangerous  as 
most  of  the  others. 

“Ihissiug-  Suiith’s  Chain,  the  channel  inclines  gradually 
towards  the  Illinois  shore,  until  it  ('onies  to  Sycanioi’e  Cliain, 
which  is  (‘ou(‘(‘d(‘d  to  he  the  most  difficult  place  to  ])ass  on  the 
whole  rapids.  Here  the  rocky  Jedges  project  out  fi'om  each 
shore,  leaving  between  them  only  a min'oiv  and  crooked  irater- 
i('(iy.  The  current  ])eing  swift  and  the  turns  sliort,  boats  in 
])assing-  are  exposed  to  strong  cross-currents,  wbicb  tend  to 
sweep  them  on  the  lower  ledge;  besides,  in  one  of  the  sharp 
bends  a dee])  ])ocket  has  been  cut,  and  a large  amount  of  water 
runs  tlirougb  it,  wliicli,  by  its  action,  tends  to  draw  boats  into 
it,  where  they  sometimes  become  fastened,  and  to  extricate 
them  involves  a loss  of  much  time,  and  is  a labor  of  great 
difficulty. 

^‘Tbe  difficulties  at  Sycamore  Chain  are  not  the  result  of 
a want  of  sufficient  depth  of  water,  for  there  is  a good  depth 
in  tile  channel,  but  they  arise  from  its  narrowness  and  crooked- 
ness, together  with  the  strong  cross-current  that  sweeps  over  it. 

‘C\fter  passing  Sycamore  Chain  the  channel  runs  close  to 
the  Illinois  shore,  passing  inside  of  Crab  Island,  where  it  be- 
comes very  narrow,  and  then  inclines  towards  the  Iowa  shore, 
until,  at  Saint  Louis  Rocks,  it  reaches  a point  about  midway 
lietween  the  Illinois  shore  and  Fulton’s  Island.  Passing  the 
Saint  Louis  Rocks  it  again  inclines  toward  the  Illinois  shore, 
until  it  reaches  Saint  Louis  Chain,  where  the  channel  becomes 
narrow  again,  but  boats  that  pass  the  chains  above  or  below 
this  seldom  experience  great  difficulty  here.  Below  this  chain 
the  channel  opens  out  gradually  into  a stretch  of  3 miles, 
perfectly  navigable  at  all  times.  In  front  of  Hampton  the 
current  becomes  quite  sluggish. 

“Opposite  the  head  of  Campbell’s  Island  the  channel  crosses 
Campbell’s  Chain,  which  is  not  only  crooked  and  exposed  to 
cross-currents,  hut  the  rocky  ledge  extends  entirely  across  the 
river.  In  the  channel  pursued  by  steamboats  across  this  chain 
the  uriter  is  not  much  deeper  than  on  either  side  of  it.  * * * 

“After  passing  Campbell’s  Chain,  with  the  exception  of 
the  rocks  near  Winnebago  Island,  which  are  somewhat  of  an 
obstruction,  the  channel  is  wide  and  easily  navigated  until 
it  comes  to  Duck  Creek  Chain,  nearly  three  miles  below.  Here 
it  is  crooked  and  narrow,  so  much  so  as  frequently  to  necessi- 
tate the  use  of  anchors  at  low  water  for  the  purpose  of  work- 
ing l)oats  through.  This  is  another  difficult  chain  to  pass 
through.  (A])st.,  ])]).  I705-170().) 

“Below  Duck  Creek  the  channel  widens  out  again,  giving 
good  navigation,  with  the  exce]:)tion  of  one  narrow  ]dace  for 
about  2 miles,  when  it  comes  to  IMoline  (Tiain.  Here  again 


I 


527 


[lie  knlge  of  roc'k  oxtcMuls  (‘niir(‘ly  across  llu;  i-ivcir  and  ronns 
ill  low  water  an  iiniiassahle  harrier  to  boats  drawing’  more 
than  do  inelies.  The  water  jiasses  over  this  eliain  at  a mean 
siirtiu'e  velocity  of  d.878  feet  per  sei'ond  at  low  water,  and  a 
maximum  velocity  of  5.0545  feet  per  second,  as  determined  hy 
actual  observation  with  lioats. 

“The  average  Jengtli  of  the  boating  season  is  about  200 
days.  During  the  winter,  as  a matter  of  course,  navigation  is 
closed  hy  the  ice. 

“When  tlie  river  is  open  to  navigation,  about  one-third  of 
the  whole  time  is  rendered  dangerous  by  the  shoalness  of  the 
water  on  the  rapids,  and  sometimes  impassable  for  boats 
drawing  more  than  2 feet.  In  thp  year  1864  the  water  wa^ 
lower  than  had  been  known  before  in  many  years,  attaining 
its  lowest  point  September  2.  * * 

Qj?  levels,  from  the  head  to  the  foot  of  the 
rapids,  shows  a fall  of  21.46  feet  in  a distance  of  about  14 
miles,  or  an  average  fall  of  1.53  feet  per  mile  in  low  water. 

^‘The  greatest  fall  is  on  Moline  and  Sycamore  chains. 

‘Mn  planning  an  improvement  for  the  rapids  of  the  Missis- 
sippi Kiver,  one  point  must  not  be  lost  sight  of,  viz.,  the  im- 
provement must  not  of  itself  become  an  obstruction,  and*  no 
plan  should  be  adopted  for  the  improvement  of  navigation  in 
low  water  that  would  be  i)rejudicial  to  its  present  state  in 
high  water.  On  this  point  I am  not  alone,  and  respectfully 
call  your  attention  to  the  report  of  the  Board  of  Engineers, 
convened  at  my  reejuest  and  in  obedience  to  your  orders,  a 
copy  of  which  is  herewith  a|)pended. 

‘M  have  no  hesitation  in  saying  that  in  my  opinion  a ])lan 
of  improvement,  by  means  of  an  independent  lateral  canal  on 
either  side  of  the  river,  is  far  preferable  to  the  foregoing,  no 
matter  on  which  side  the  canal  should  be  located.  Though  it 
has  some  objections,  it  recommends  itself  from  the  fact  that 
it  in  no  way  interferes  with  the  river  as  it  is,  and  will  l)e 
navigable  at  all  times,  night  or  day,  windy  or  foggv  weather. 

“I  have  not  made  any  estimate  of  the  cost  of  constructing 
a canal  on  either  side  of  the  river;  first,  on  account  of  the 
limited  time  at  my  disposal;  and  second,  because  T think  the 
time  has  not  yet  come  when  it  is  necessary  to  resort  to  a 
canal  as  a means  of  overcoming  the  difficulties  of  navigation 
on  these  rapids.  It  is  certain,  liowever,  that  a canal  of  the 
• dimensions  necessary  to  accommodate  the  commerce  of  this 
river  cannot  be  l)uilt  on  either  side  for  less  than  al)out  two  and 
a half  million  'to  three  and  a half  million  dollars.” 

U.  S.  Engineer’s  Reports,  1886,  Vol.  Tit,  pp.  1441-1442-3. 


liocK  Island  J^apids 
from 

SuKVEY  OF  \jT.  I].  I\  Hoffman. 

mn 

^‘TJie  greatest  and  Jeast  velocity  at  tlie  cliains  mentioned  were 
found  to  be  as  follows: 

At  8mi til’s  Chain,  8.18  and  3.6  feet  per  second. 

At  Hycamore  Chain,  6.20  and  3.4  feet  per  second. 

At  Campbell’s  Chain,  3.33  and  1.5  feet  per  second. 

At  Moline  Chain,  8.36  and  4.1  feet  per  second.” 

U.  S.  Engineer’s  lieports,  1886,  Vol.  Ill,  p.  1448. 

Eock  Island  Eapids 
from 

SuEVEY^  BY  CaPT.  C.  J.  AlLEN. 

1869. 

At  Moline  Chain. 

^‘The  buoys  for  the  location  of  the  coffer-dam  at  Moline 
Chain  were  placed  early  in  June,  1868.  This  chain  presented 
many  difficulties  to  the  establishment  of  a dam  on  account  of 
the  great  velocity  of  current,  which  above  the  chain  was  3.63 
teet  per  second,  at  the  dam  6.36,  and  below  it  nearly  4 feet, 
with  a surface  slope  of  0.37  feet  upon  900  feet.  The  buoys 
were  laid  out  by  the  theodolite  from  the  primary  sounding 
based  on  the  Iowa  shore.  Cribs  were  sunk  and  a bulkhead 
formed  as  at  Duck  Creek. 

‘^By  the  30th  July  the  coffer-dam  was  finished  and  con- 
nected with  the  stone  dam  at  the  head  of  Eock  Island  by  a 
bridge  built  on  stone  cribs,  500  feet  in  length.  It  had  a cross- 
section  of  9 by  9 feet,  and  a development  of  2,645  lineal  feet, 
averaging  260  feet  in  width  and  950  feet  in  length  and  inclos- 
ing 6 acres.  Placed  on  a rock  bottom  and  in  a very  swift  cur- 
rent, great  pains  had  to  be  taken  in  its  construction  and  in 
protecting  it  by  means  of  cribs  on  the  outside.  The  work  was 
considerably  delayed  from  the  frequent  collisions  of  steamers 
which,  in  trying  to  ascend  the  chain,  were  drawn  into  the  eddy 
at  the  foot  of  the  dam  and  thence  swung  against  the  work 
Itself.  To  prevent  this  cribs  of  stone  were  sunk  and  piles  of 
stone  placed  at  points  where  the  dam  was  likely  to  be  struck, 
after  which  no  accidents  occurred.  On  August  15,  the  dam 
having  been  cleared  of  water,  a close  topographical  survey  of 
the  rock  bottom  was  made.  An  examination  showed  the  lime 
rock  to  be  much  more  regular  in  its  formation  and  layers  than 
that  work  at  Duck  Creek.  A large  number  of  nranite  boulders 
ivere  found  scattered  over  the  surface  of  the  roch,  ivhich  had 
undoubtedly  been  deposited  there  by  the  fields  of  ice  as  they 


521) 


moved  doirn  in  Ike  spring.  Some  of  these  were  of  large  size 
and  verg  dangerous  to  boats.  It  was  decided  to  (;liaririel 
tliroiioii  11k3  rock,  making  the  cut  200  feet  wide,  and  giving 
the  bottom  a slope  })arallel  to  the  slope  of  the  sni'l’ace  ol‘  the 
water.  ,P)y  giving  the  bottom  a hatter  slope  than  this,  the 
velocity  ot  the  current  over  the  main  portion  of  the  chain  would 
have  been  lessened,  to  the  advantage  of  steamers  ascending 
this  portion;  l)ut  the  backwater  i')rodnced  in  consequence  would 
have  caused  heavier  fall  at  the  foot  of  the  chain,  the  result- 
ing velocity  being  calculated  at  nearly  8 feet  per  second.  ]n 
making  the  improvement  here  as  upon  the  other  chains,  the 
object  has  been  to  so  arrange  the  cuts  as  to  preserve,  if  pos- 
sible, the  existing  regimen  of  the  river  at  tlie  respective  points. 

At  Sycamore  Chain. 

‘‘The  chain  is  2,700  feet  in  length,  with  a surface  current 
varying  from  6.5  feet  per  second  to  3.5  feet  per  second.  The 
water  had  worn  for  itself  a very  irregular  channel  through  the 
rock,  its  axis  forming  a sort  of  long  S.  The  main  .channel  was 
intersected  by  several  smaller  channels  and  chutes,  the  water 
laishing  through  the  latter  with  considerable  velocity,  the  effect 
of  which,  conjointly  with  the  current  of  the  main  channel,  was 
to  carry  vessels  out  of  their  course,  and  either  force  them 
against  the  sharp  projecting  rock  on  the  sides  of  the  channel 
or  into  the  small  chutes,  where  they  sometimes  remained  for 
aays,  if  not  totally  wrecked.  During  seasons  of  high  water  no 
difficulty  had  been  experienced  at  this  chain  or,  in  fact,  at 
any  ot*  the  chains  other  than  that  of  stemming  the  current; 
})ut  during  seasons  of  low  water  the  ])assage  of  boats  was 
always  attended  with  danger,  and  at  the  lowest  stages  passage 
was  ini])ossible.  About  6()()  feet  below  the  head  of  tlie  chain 
the  rock  rose  ahru])tly  from  the  bottom,  forming  a sort  of 
bridge  connecting  the  walls  of  rock  on  each  side  of  the  chan- 
nel, ovei*  which  at  low  water  there  was  scarcely  a foot  de])th. 
Below  the  bridge  the  channel  gradually  increased  in  width, 
never  exceeding  180  feet,  untd  at  the  lower  end  it  abruptlg  nar- 
roired,  with  an  increase  of  surface  velocitg.  Immediately 
aoove  and  below  the  chain  was  deep  water.” 

U .S.  Engineer’s  liei)orts,  1886,  Vol.  Ilf,  ])]).  1-156-7. 

Bock  Island  Bapids 
from 

Beport  by  Major  McKenzie. 

1871-2. 

At  Saint  Louis  Chain. 

“Numerous  soundings  were  made  in  the  fall  of  1871  on  this 
chain,  in  addition  to  those  of  1867  and  1868.  After  platting 
these  soundings  it  was  decided  to  deviate  from  the  original 


|)l;ni  of  improvement.  The  ('liaimel  was  deep  and  wide,  with 
lh(‘  ex('e))ti()n  of  the  part  (*alled  “Saint  Louis  Cabin  Passage.” 
At  this  point  (speaking  with  reference  to  a ])Iane  4 feet  below 
low  water  of  18b4)  lie  two  islands,  averaging  in  elevation 
al)ove  said  plane  Lb  feet.  These  form  three  passages,  of 
which  at  low  water,  the  larf/est  is  not  more  thon  frovt  bO  to 
70  fe(‘t  u ide.  Only  two  of  these  i)assages  could  })e  used,  those 
nearest  the  Iowa  side,  the  tliird  })eing  too  crooked.  The  first 
plan  was  to  remove  })oth  islands,  hut  after  careful  consider- 
ation it  was  decided  to  remove  hut  one,  and  as  much  of  the 
intruding  rock  on  the  Iowa  side  as  was  necessary  to  give  the 
improved  channel  a direction  ])arallel  to  tlie  general  direction 
of  tlie  current  of  the  river.” 

IL  S.  Engineer’s  Keports,  188b,  Vol.  Ill,  p.  14bL 

MISSTSSlPPr  RIVER ROCK  JSLAKD  RAPIDS SUMMARY. 

The  net  result  of  this  comparison  is: — that  the  Mississi])pi. 
though  lialf  a mile  wide  at  this  point,  had  a channel  averaging 
about  200  feet  wide,  in  the  lower  part  never  exceeding  180  feet 
(HI.  Engr’s  Eept.,  188b,  p.  1456),  and  “at  the  lower  end,  is 
ahru})tly  narrowed  with  an  increase  of  surface  velocity”  (lb.), 
“probably  140  feet: — down  in  low  water  you  couldn’t  get  that 
through— not  over  50  feet”  (Whistler,  Abst.,  p.  1154);  “the 
largest  is  not  more  than  from  60  to  70  feet  wide  (Id.,  1461)  ; that 
this  channel  extended  through  these  rapids  for  a distance  of  14 
miles  and  was  crossed  l)y  numerous  reefs  which  “at  some  points 
extended  entirely  across  the  channel,  and  projecting  at  others 
from  opposite  sides  formed  a winding  difficult  and  dangerous 
passage,”  with  “short  turns  and  narrow^  passes  between  the  reefs” 
(Kej)ort  of  lio])t.  E.  Lee,  Abst.,  p.  1616),  “leaving  a narrow  tortu- 
ous channel  between  them  and  in  some  instances  extending  like 
a dam  or  rocky  b'ar  entirely  across  the  river”  (Keport  of  Capt. 
IL  C.  Ifains,  Abst.,  p.  1705) ; — that  there  were  seven  principal 
chains  of  reefs  in  this  14  miles  (lve]X)it  of  Capt.  P.  C.  Hains,  Abst., 
p.  1705),  “leaving  only  a narrow  and  crooked  waterway”  with 
“strong  cross-currents”  (Keport  of  Capt.  P.  C.  Hains,  Abst., 
p.  1706)  ; — that  the  channel  was  studded  with  islands  which  at  the 
central  portion  of  the  “St.  Louis  Cabin  Passage”  “form  three 
passages,  of  which  at  low  water  the  largest  is  not  more  than  60 
or  70  feet  wide”  (111.  Keport  of  1886,  p.  1461); — that  the  bed 
through  and  over  which  this  channel  ran  consisted  of  “hard  sur- 


huH'  of  liin(‘sloii(‘  rock”  (K^'porl  of  P.  (j.  Mains,  Ahsl., 

}).  ITOo),  with  “a  larg'o  iiinnhc]'  oF  i>ranit(‘  hoiihkirs  scait(n-(Ml  ov(‘r 
the  siirFacc  oF  the  roc'k  whicli  had  luidoiihtedly  hcHni  depositcid- 
there  by  the  Helds  oF  ice  as  they  moved  down  in  the  si)rini>'.  Some* 
oF  these  were  oF  large  size  and  very  dangerous  to  boats”  (U(i])ort 
oF  (h/ut.  (\  J.  Allen,  18(i9. 

But  in  some  cases,  as  at  Campbell’s  chain,  these  large  boulders 
])rojeeting  al)ove  tin.'  surface  of  the  water  ‘Alid  not  present  serious 
obstructions,”  but  ^‘rather  served  as  guidemarks  for  pilots.” 
(Ke])ort  of  Ca])t.  P.  C.  Hains,  1886,  Abst.,  p.  1705.)  Capt.  Hains’ 
writing  in  1886,  came  after  the  removal  of  the  more  numerous 
and  dangerous  boulders  which  Capt.  Allen  found  there  and  found 
very  dangerous  in  1869. 

That  in  this  distance  of  about  11-  miles”  the  river  fell  21.16 
feet,  ‘‘or  an  average  fall  of  1.53  feet  per  mile,”— that  the  fall 
was  concentrated  at  the  reefs,  between  which  were  pools  (Eeport 
of  Gen.  G.  K.  Warren) that  in  the  ordinary  depth  of 
water  this  channel  was  available  for  boats  drawing  12  inches 
to  31  feet  (Tibl)als,  Abst.,  p.  635) ; — that  the  low  water  was  im- 
passable for  l)oats  drawing  2 feet;  — that  “when  the  river  was 
open  for  navigation  (260  days,  8 2/3  months)  about  one-third  of 
the  whole  time  (87  days,  i.  e.^  3 months)  it  is  rendered  dangerous 
by  the  shoalness  of  tlie  water  on  the  ra])ids,  and  sometimes  im- 
passable for  boats  drawing  more  than  2 feet  (Report  of  dipt. 
P.  C.  Hains,  Abst.,  |).  1707)  ; — that  every  year  of  low  water  several 
boats  were  sunk  and  others  seriously  injured  in  attem])ting  the 
passage; — that  light  draft  boats,  like  the  “Phil  Scheckel”  draw- 
ing 15  inches,  the  “Black  Hawk”  drawing  16  inches,  the  “Silas 
Wright”  drawing  12  to  16  inches  and  the  “Hnter])rise”  draw- 
ing 10  inches,  were  relied  on  for  navigation  during  low  water; 
and  in  1864-  even  these  Floats  “couldn’t  run  at  all”  (Governor  Van 
Sant,  Abst.,  pp.  858-9) ; — that  1-t  inches  was  the  lowest  water  they 
got  through  on,  and  profitable  commercial  navigation  was  in  fact 
carried  on  over  14  inches  of  water  (Tibbals,  Abst.,  p.  636) ; — that 
the  current  through  this  reach  varied  from  3 miles  an  hour  in 
the  stiller  jiools  to  6,  9,  10  and  11  miles  an  hour  (Mason,  Abst., 
]ip.  1219-20)  ; — that  in  getting  through  these  swifter  reaches  it  was 
customary  to  “double  trip”  it,  /.  c.,  take  up  half  the  load  and  then 


i>’()  back  Tor  llie  otlior  lialf;  to  'Svarp”  or  ''cordel”  tlie  ])oat  up 
by  puttiuo:  out  ahead  aii  aiielior  witli  a ca])le  and  wind  up  the 
‘ea])le  by  a eapstan  operated  l)y  steam  (Tib])als,  Abst.,  pp.  G36-7) 
that  afterwards  a special  set  of  ])oats  and  pilots  were  kept  at  the 
rapids  to  take  boats  through  (McCatfrey,  Abst.,  p.  1158) ; (Kambo, 
Abst.,  ]).  hlG-l:)  ; — that  the  United  States  Government  has  expended 
millions  of  dollars  improving  the  navigation  of  this  reach  of  rapids 
and  finally  a lock  was  put  in  to  take  up  the  fall,  and  wing  dams  to 
reduce  the  current. 

In  .1889  the  official  list  of  steamboats  plying  the  Mississippi  and 
tributaries  published  in  Capt.  MarshaH’s  report  (Ex.  Doc.,  264, 
p.  119),  gave  7 boats  having  a depth  of  only  2 feet  and  tonnage 
ranging  from  52:}  to  119  tons  and  30  other  boats  having  less  than 
3 feet  depth  and  tonnage  ranging  from  55  tons  to  186  tons  (Ex. 
Doc.,  264,  pp.  119-128). 

These  14  miles  of  the  Mississippi  reproduce  in  manifold  meas- 
ure all  of  the  difficulties  presented  by  the  16  miles  of  the  Des 
Plaines : 

IVm.  E.  Tibbals. 

I have  steamboated  on  the  Mississippi  itself  on  14  inches 
of  water.  Several  boats  used  to  run  up  the  Iowa  and  bring 
out  freight.  Thev  drew’  from  12  inches  to  18  or  20.  (Abst.,  p. 
636.) 

L.  E.  Cooley. 

Between  Cairo  and  Memphis  in  the  Plum  Point  reach  of 
the  Mississippi  Ave  used  a small  tow-boat  and  had  currents 
of  5 to  6 miles  an  hour  and  at  Fort  Pillow  Eddy  we  sometimes 
struck  currents  of  12  miles  an  hour  which  Ave  used  to  run. 

Eock  Islax^d  Eapids. 

Witnesses  for  the  Defense. 

AY.  H.  AVhistler. 

Licensed  pilot  on  the  upper  Ylississippi  since  1870.  Began 
running  on  the  rUer  1865.  (Abst.,  p.  1154.)  I became  A^ery 
familiar  with  the  Eock  Island  Eapids  (Abst.,  p.  1154). 

Q.  And  this  Avater  looks  very  much  swifter  than  thatf 
(Leading  question  by  counsel  for  defense.) 

A.  Yes,  sir. 


C ro  ss-E  xa  imn  a tioii. 

T don’t  know  the  fall  at  the  Moline  Rapids,  ])nt  you  take  it 
at  Moline  Cliain,  Diiek  Creek  Cdiain,  Oainpbeirs  Cliain,  Syca- 
inore  Cliain  and  (kihin  Cluiiii  is  the  heaviest  fall.  Yes,  I 
tliink  the  jMoline  Chain  tliey  claim  for  six  miles  tliere  or  ahoiii 
two  miles  there  it  lias  six  feet  or  something  I have  heard  that 
said  (Abst.,  p.  1155). 

Q.  How  wide  is  the  Mississippi  where  you  have  navigated 
it  at  the  narrowest  ])lace! 

A.  On  the  upper  Mississippi,  when  it  gets  low,  I have  seen 
places  where  you  could  get  a raft  through,  or  half  a raft, 
probably,  140  feet.  Yes,  I have  seen  it  down  where  you 
couldn’t  get  that  through.  There  would  be  from  18  inches  of 
water,  two  feet  on  the  sides  with  just  three  feet  or  three  feet 
scant  to  get  your  boat  in.  That  would  be  wide  enough  for  a 
boat,  or  a little  wider,  not  over  50  feet.  The  channel  is  sup- 
posed to  be  200  feet  between  Eock  Island  and  Le  Claire,  that 
is  on  the  different  chains  where  they  have  dredged  out.  It 
is  about  that  or  less  at  the  Sycamore  Chain  just  below  Le 
Claire  and  above  Eock  Island.  The  stretch  of  water  is  half  a 
mile  wide.  The  deep  place  where  the  current  is  hardly  200 
feet.  The  Des  Plaines  Eiver  looked  pretty  small  after  that. 
I have  never  been  on  any  of  those  little  rivers  40  feet  wide 
or  30  feet  wide.  (Abst.,  p.  1156.)  It  is  possible  to  navigate 
a crooked  river  30  feet  wide  so  crooked  that  it  goes  by  the 
name  of  crooked,  by  boats  75  to  100  feet  long.  It  would  de- 
pend upon  the  depth  of  water  and  the  swiftness  of  the  cur- 
rent. On  a depth  of  21  feet  you  could  not  handle  her  unless 
you  would  drop  down  a line,  you  might  drop  down  stream 
with  a line.  lYe  don’t  handle  the  light  draft  boats.  (Abst., 
p.  1156.) 


John  jMcCaffrey. 

Steamboating  license  on  the  ]\[ississip]:>i  since  1865.  IVas 
partner  of  Governor  Van  Sant  for  15  years  (AbM.,  p.  1157). 
The  last  boat  I built  was  the  Joe  Long.  I ran  her  four  or 
five  yeai-s  on  the  rapids.  I built  her  for  the  Eock  Island 
rapids.  I ran  12  or  14  years  as  a rapids  pilot.  We  cordelled 
boats  u])  the  Chippewa  because  that  was  the  only  way  we 
could  get  up,  the  water  was  too  swift  (Abst.,  p.  1158).  T have 
warped  boats  on  the  rapids  on  different  rivers;— on  the  Chip- 
pewa and  on  the  Ouachita  (Abst.,  p.  1160).  I was  u])  the 
Ouachita  4,  5 or  6 times.  It  was  about  18  years  ago.  I could 
not  tell  how  steep  it  was  (Abst.,  p.  1160).  It  is  300  feet  wide, 
deep  close  in  shore  against  a steep  bank  and  got  shallow  as 
we  went  away  and  the  current  was  in  the  bend.  I don’t  know 
the  difference  between  cordelling  and  warping  (Abst.,  p.  1160). 


534 


(UpTAIN  liAMMO. 

Li(‘eii.sp(l  pilot  on  tlie  Mississi})pi  since  18(54.  J^een  on  the 
I\o(‘k  Island  i-apids  for  45  years.  I>efore  that  was  a common 
raftsman  on  the  river.  The  normal  low  stage  on  the  Eock 
Island  rai)ids  is  3.^  feet.  Tiefore  it  was  improved  it  was  20 
iiu'hes  in  18(14  (Ahst.,  )).  11(51).  We  had  a little  boat  or  two 
that  we  got  over  once  in  a while.  It  was  90  feet  long,  20  feet 
beam,  the  Enterprise.  Twenty  im'hes  was  the  best  depth  we 
conld  find.  The  normal  low  water  before  tlie  im])rovements 
was  30  inches.  That  l)oat  carried  a small  amount  of  freight. 
She  ran  in  connection  witli  the  Western  Union  Railroad  from 
Savannah  to  Rock  Island  (Al)st.,  p]).  11(51-2).  The  Eock  Island 
ra])ids  have  a total  fall  of  21  feet  in  14  miles.  The  (lovern- 
ment  re])orted  14  and  something.  It  is  a little  over  15  by 
channel  (A1)st.,  p.  1162).  Tliei*e  is  one  place  in  it  where  it  is 
3;]  feet  per  mile.  There  are  two  jhaces  so  near  alike  they 
('all  it  just  the  same  (Abst.,  ])]).  1162-3).  T have  never  seen  navi- 
gation on  a slope  of  6,  7 or  8 feet.  I have  never  been  on  very 
many  rivers.  I don’t  think  it  possible  to  navigate  a river  with 
a fall  of  16  feet  to  the  mile  (Abst.,  p.  1163).  At  the  Eock  Island 
rapids  they  always  had  to  have  a pilot  to  take  them  over,  they 
conld  not  go  alone  (Abst.,  p.  1163).  That  is  the  most  difficult 
rapids  I know  anything  about.  The  smallest  steamboat  that 
goes  over  there  is  75  feet  long.  There  are  electric  and  gaso- 
line launches  that  go  up  and  down  over  the  rapids  which 
are  from  16  to  90  feet  long  (Abst.,  p.  1163). 

I never  knew  a boat  so  small  as  to  carry  as  a load  ten  tons 
of  freight  (Abst.,  p.  1163).  A boat  30  feet  long,  15  feet  wide 
on  the  hat  bottom -would  carry  )0  tons  without  any  trouble. 
I have  had  no  experience  with  that  character  of  navigation. 
(Abst.,  p.  1163.) 


JoSEI’H  E.  MoCullough. 

The  most  rapid  water  I ever  navigated  was  the  falls  of  the 
Ohio  and  Harbor  Shoals  on  the  Cumberland.  I have  been 
over  the  falls  at  the  Hes  Moines  rapids  and  the  Eock  Islana 
rapids  on  the  Mississippi  (Abst.,  p.  1177). 

0.  How  does  the  Hes  Plaines  Elver  compare  with  the  Hes 
Moines  and  the  Eock  Island  rapids! 

A.  ^Yell,  those  rapids  are  navigable,  steamboats  go  up  and 
down  over  them,  but  there  never  has  been  any  boat  on  the 
Hes  Plaines  River  and  ain’t  agoing  to  be. 

Q.  You  mean  that  the  Hes  Plaines  River  is  swifter! 

A.  Why,  certainly  (Abst.,  p.  1176).  The  slope  of  the  Ohio 
at  the  Ohio  rapids  is  28  feet  from  the  head  to  the  foot  of  the 
fall  in  2 miles,  14  feet  per  mile  (Abst.,  p.  1177).  The  Harbor 


Shoals  ill  the  (hiiiiborlaiul  liavo  a Tall  of  ovcm*  H loch  in  a inih* 
and  a liltlo  oven*.  In  low  wat(‘r  they  had  1o  warp  oven-  it  hnt 
the  (Joverninent  jilacod  a lo(*k  and  dam  (Ahst,  p.  1177).  Tlioro 
aro  looks  and  dams  on  the  Falls  of  th(‘  Ohio,  ])nt  th(*re  hy  the 
( Jovermnent.  Wherever  there  are  shoals  or  rapids  in  the* 
rivers  I have  been  on,  the  (Jovermnent  is  improving-  them 
(Ahst.,  }).  1178).  With  all  the  water  that  a boat  needs,  I don’t 
think  it  could  be  navigated  over  a slo])e  of  over  4 or  5 feet  to 
the  mile.  A boat  50  or  60  feet  long,  12  feet  wide  and  carrying 
10  tons  could  be  navigated  on  6 or  7Jnches  of  water  Abst., 
jn  1178).  I should  say  navigalile  in  shoal  water  would  not  be 
over  44  to  5-inile  current  (Abst.,  p.  1182).  ♦ 

Thomas  F.  Boyle. 

(Abst.,  p.  1179.)  The  current  in  the  Mississippi  at  St.  Louis 
and  below  there  is  7 miles  an  hour.  You  can  navigate  it.  A 
boat  can  navigate  in  a greater  current  depending  on  the 
])ower  of  the  boat  (Abst.,  p.  1181-2).  Take  a boat  like  I have 
sen  in  the  (Ohio;  and  my  boat  can  go  against  a 10-mile  current 
easy  enough  (Abst.,  1182). 

Isaac  X.  Masox.  ' 

Began  steamboating  on  the  Monongahela  in  1846.  Navi- 
gated the  Monongahela,  the  Ohio,  the  Mississippi  (Al)st., 
p.  1217);  the  Missouri  (Abst.,  ]>.  1217);  the  Cumberland,  the 
Tennessee,  the  AVabash,  the  Allegheny  (Abst.,  ]).  1220).  1 have 
gone  over  the  Hock  Island  ra])ids.  Our  boat  ran  continually 
up  and  down  that.  The  slo])e  there  is  about  18  feet  in  18 
miles.  At  the  Des  Moines  ra|)ids  there  is  a fall  of  over  12 
feet  in  12  miles.  The  current  of  the  AIississi])])i  at  Hock  Islan  - 
varies  very  much  in  the  18  miles.  Part  of  it  is  10  or  11  mih's 
an  hour  and  some  of  it  is  i)rohably  only  2 or  8 miles.  It  is 
in  pools.  The  ra|)ids  is  in  ])ools  (Abst.,  ]).  1220).  The  greatest 
slope  I have  gone  over  is  the  falls  of  the  Ohio  at  Louisville, 
that  is  about  80  feet  in  2 miles.  The  l)oats  make  it  only  in 
high  water  and  the  current  then  would  average  6 to  8 miles 
an  hour  (Abst.,  p.  1220).  1 should  approxdmate  the  current  in 
the  lies  Plaines  River,  in  some  parts  of  the  river  the  cur- 
rent is  from  7 to  10  miles  an  hour.  There  is  places  in  the 
Des  Plaines  River  where  the  current  I should  think  is  more 
rapid  than  it  is  on  the  Mississippi  River  only  for  a short  dis- 
tance. 1 only  judge  from  experience  in  looking  at  it  this 
morning  (Abst.,  p.  1220).  My  interest  is  to  have  the  upper 
Mississipy)i  improved.  The  rapids  in  low  water  is  more  dan- 
gerous to  navigate  and  the  Government  has  im])roved  them 
in  such  a way  they  have  lessened  the  dauger  over  100  per 
cent.  (Abst.,  p.  1220.) 


FOX  JOVFR. 


Fkom  U.  S.  Engineers  ' Iieport  for  1876,  Part  2. 

Extracts  From  Chapter , fjp.  201-297 : 

3516  Page  201. 

very  interestiag  natural  feature  is  x>i‘^^sented  jjy  the 
courses  of  the  Wisconsin  and  Fox  Rivers.  They  flow  towards 
each  other  to  within  11/2  miles  of  meeting,  and  then,  turning 
in  opposite  directions,  although  separated  only  by  a low 
plain,  iu^ross  which  their  floods  intermingle,  the  wmters  of  the 
one  pursue  a southerly  course  to  the  distant  Gulf  of  Mexico, 
and  those  of  the  other  a northerly  direction  to  the  equally  re- 
mote ocean-receptacle,  tli-e  Gulf  of  Saint  Lawrence.  Each  of 
these  termini  was  a region  beyond  the  bounds  of  the  knowledge 
of  the  aboriginals  on  the  banks  of  the  two  rivers.”  (Abst.,  p. 
1624.  ) 


Page  202. 

History  of  Discovery,  Etc.,  by  John  Gilmary  Shea. 

{Summarized  in  the  U.  S.  Engineers’  Report.) 

‘‘Discovery  and  Explorations  of  the  Mississippi  Valley,” 
Redfield,  N.  Y.,  1853.  This  contains  a print  of  the  original 
map  made  by  Father  Marquette,  (then  recently  found. among 
the  records  preserved  at  Saint  Mary’s  College,  Montreal),  a 

reduced  copy  of  wdiich  accompanies  this  chapter.  (Plate  1.) 

# *'  • * * * * 

Adventures  of  the  Sieur  Nicolet,  A.  D.  1639. — “As  early 
as  1639  the  adventurous  and  noble-hearted  Sieur  Nicolet,  the 
interpreter  of  the  colony,  had  struck  west  of  the  Hurons,  and, 
reaching  the  last  limits  of  the  Algonquins,  found  himself 
among  the  Ouinepegon,  (MTnnebagoes.)  * * * AYith  these 

Nicolet  entered  into  friendly  relations,  and,  exploring  Green 
Bay,  ascended  Fox  River  to  its  portage,  and  embarked  on  a 
river  flowing  west.” 


Page  203. 

Marquette  says: 

“It  was  on  the  17th  of  May,  1673,  that  we  started  from  the 
mission  of  Saint  Ignatius,  at  Michilimakinac,  where  I then 
was.  Our  joy  at  being  chosen  for  this  expedition  roused  our 
courage  and  sweetened  the  labor  of  rowing  from  morning  till 
night.” 


r)/}( 


Pai>e  1^04. 

On  “tlio  lOtli  oT  June,”  Mar(jU(‘ll(‘,  says: 

"^Two  Miamis,  wlioin  they”  (the  Indians)  “had  ns 

as  gaiides,  embarked  Avitli  ns,  in  tlie  sight  of  a gr(‘at  (o-owd, 
who  eoiild  not  wonder  enongli  to  see  seven  Frenclunen  alone, 
In  two  canoes,  dare  to  undertake  so  strange  and  iiazardous  an 
expedition. 

”AVe  knew  that  there  was,  tliree  leagues  from  Maskoutens, 
a river  emptying  into  the  Mississip])i ; we  knew,  too,  that  the 
l)oint  of  the  compass  we  were  to  hold  to  reach  it  was  the  west 
southwest;  but  the  way  is  so  cut  up  by  marshes  and  little  lakes 
that  it  is  easy  to  go  astray,  especially  as  the  river  leading  to  it 
is  so  covered  with  wild  rice  that  you  can  hardly  discover  the 
channel.  Hence  we  had  good  need  of  our  two  guides,  who  led 
us  safely  to  a portage  of  twenty-seven  hundred  paces,  and 
helped  us  to  transport  our  canoes  to  enter  this  river,  after 
which  they  returned,  leaving  us  alone  in  an  unknown  country, 

in  the  hands  of  Providence.” 

***** 

3537  ^‘The  river  on  which  we  embarked  is  called  Meskousing,  ” 
(Wisconsin)  ^4t  is  very  broad,  with  a sandy  bottom,  form- 
ing many  shallows,  which  render  navigation  very  difficult. 
It  is  full  of  vine-clad  islets.,  (Abst.,  p.  1631.) 

^^Our  route  was  southwest,  and  after  'sailing  * * * 40 

leagues  on  this  same  route,  we  reached  the  mouth  of  our  river, 
and  * * safely  entered  the  Mississippi  on  the  17th  of 

June,  with  a joy  that  I cannot  express.” 

* * * * * 

^^They,  turned  l)ack  and  ascended  the  Mississip])i 

to  the  mouth  of  the  Illinois  Piver,  up  which  stream  they  pro- 
ceeded as  far  as  the  portage  near  the  present  site  of  Chi- 
cago, where  they  crossed  over  to  the  shore  of  Lake  Michigan, 
and  coursed  along  it  to  the  mission  at  Michilimackinac. ” 


3516  Page  205-6. 

Peport  oe  IMajor  Long,  United  States  Army,  1817  and  1823. 

The  Wisconsin  Piver  was  visited  by  Maj.  S.  11.  Long,  United 
States  To]iographical  Engineer,  in  1817,  and  again  in  1823, 
and  he  thus  describes  it: 

^Mhie  Wisconsin  Piver,  from  its  magnitude  and  importance, 
deserves  a high  rank  among  the  ti-ibutaries  of  the  Mississippi. 
AVhen  swollen  by  a freshet,  it  affords  an  (206)  easy  naviga- 
tion for  boats  of  considerable  burden  through  a distance  of 
more  than  180  miles.  Its  current  is  rapid,  and  like  the  Mis- 
sissippi, it  eml)osoms  innumerable  islands.  In  a low  stage  of 
water  its  navigation  is  obstructed  by  numerous  shoals  and 


sand-hanks.  At  tlio  distaiH'n  from  its  niontli  above  nien- 
liomal  (too  ^I’eat  an  estimate  by  tiO  miles)  there  is  a portage 
ol  on(‘  mik^  and  a halt,  across  a flat  meadow,  whieli  is  occa- 
sional ly  snhjec't  to  inundation,  to  a l)rancli  of  Kox  River  of 
(irecm  Hay,  finis  (ijf ordnu)  (mother  imvifjdbU^  (:()iiimiinic(iti()n 
H'hich  boats  /n/?;c  loam  kuoivn  to  pass.  Tiie  valley  of  tlie  Wis- 
consin is  somewhat  nai'rowei*  than  those  of  most  other  rivei's 
ol  this  region,  hut  in  some  resj)ects  is  very  similar  to  tliem. 
1 li(‘  high  country  here  assumes  a more  hilly  and  broken  aspect, 
and  the  soil  becomes  more  sandy  and  nieagei*.”  (See  Long’s 
Expedition  to  the  source  of  tlie  Saint  Peter’s  River,  vol.  2, 
(‘ha])ter  V.)”  (A])st.,  p]).  Ihl^o-h.) 

«=  * * * ^ 

Ik'ige  Lk)(). 

“In  1819  the  Fiftli  Regiment  of  United  States  Infantry 
made  the  voyage  from  Fort  Howard,  near  Green  Bay,  to 
Prairie  dn  Chien,  via  tlie  Fox  and  Wisconsin  Rivers,  and  Capt. 
Henry  Whiting,  of  that  regiment,  ])repared  a ma])  of  the  route 
on  a scale  of  an  inch  to  4 miles,  with  numerous  marginal  notes. 
From  these  the  following  descri])tion  is  com]hled: 

“Fort  Howard  is  on  the  left  hank  of  the  lower  Fox  River, 
about  2 miles  from  its  mouth;  about  3 miles  above  are  rapids 
and  a mill,  and  between  these  and  the  fort  was*  a French  set- 
tlement, occupying  both  hanks  of  the  river,  and  numbering 
about  sixty  families.  From  the  rapids  at  the  mills  to  the 
Grand  Chute  the  current  is  generally  so  rapid  as  to  render  a 

3518  tow-line  and  setting-poles  necessary,  and  the  boats  are  for  the 
most  ])art  moved  up  in  that  way.  In  this  space  were  })assed, 
first,  the  Little  Kakahn  Rapids,  one-quarter  of  a mile  in  length, 
easily  surmounted  with  setting  poles  and  oars;  second,  the 
Great  Kakalin  Rapids,  1 mile  in  length,  very  broken  and  vio- 
lent. where  the  boats  are  unloaded,  and  the  baggage  trans- 
ported 1,000  yards  by  land;  third.  La  Petite  Chute,  a ledge 
stretching  across  the  river,  making  a descent  of  about  12 
inches;  fourth.  La  Grosse  Roche,  which  makes  a perpendicular 
fall  of  about  2 feet.  Both  of  these  two  last-mentioned  are  sur- 
mounted with  loaded  boats. 

“At  La  Grande  Chute  there  is  a perpendicular  fall  of  about 
I feet  all  across  the  river,  and  the  boats  have  to  unload  and 
the  baggage  is  transported  500  yards.  Above  the  Grande 
Chute  and  below  Lake  W^innebago  there  are  two  or  three  in- 
considerable rapids  which  are  surmounted  without  much  diffi- 
culty or  delay. 

“The  Fox  River  thence  to  the  portage  has  always  a strong 
current  and  is  often  entirely  overgrown  with  grass  and  wild 
rice,  but  presents  no  other  impediments.  * * * (Id.,  p.  206.) 

“The  portage  between  the  Fox  and  W^isconsin  Rivers  is 

3519  about  2,500  yards;  the  road  runs  over  a marshy  prairie. 


r):>>9 

9'’lier(‘  is  a Frenclniiaii  I'esidiii^-  on  lli(‘  rising-  ^i-ound  ladwocai 
llio  riycM's.  He  keeps  the  j)r()per  traMS})()i‘tati()n  for  boats  and 
baggage.”  (Abst.,  p.  Kil^b.) 

Said  maps  aeeoiiipanyiiig  said  report  were  rec-eived  in  evidene(*. 
(AUst.,  p.  1942.) 

Wisconsin  Kiver. 


3537  l^age  200-7. 

“The  (Wisconsin)  river  is  full  of  islands,  formed 'by  the 
sandbars,  which  are  constantly  increasing  in  number.  The  gen- 
eral depth  of  the  river  is,  at  the  ordinary  height  of  the  water, 
4 to  5 feet,  but  the  sand-bars  often  extend  entirely  across  the 
river,  and  have  not  (207)  more  than  8 or  10  inches  of  water; 
the  sands,  however,  are  quick,  and  oppose  Imt  little  resistance. 
(Ibid.,  pp.  200-7.)” 


Page  208-9. 

Bill  for  the  Improvement  of  These  Eivers  and  for  a 
Canal  to  Unite  them,  &c., — “On  Feb.  11,  1839,  the  U.  S.  Sen- 
ate Committee  * * * reported  a hill  the  first  section  of 

which  provided  Uor  the  im])rovement  of  the  navigation  of  the 
AVisconsin  and  Neenah  (Up]ier  Fox)  Kivers,  and  for  their  con- 
nection by  a canal.’  The  re])ort  says: 

3538  “The  AVisconsin  may  he  rendered  naviyahle  hy'the  removal 
of  the  timber  from  its  banks  where  it  overhangs  the  channe!, 
and  occasionally  (Contracting  its  waters  l)y  closing  the  heads 
of  the  sluices  or  shallow  channels  around  the  islands.  ^ * * 

A grant  of  land  was  recommended  to  siqiply  funds  for  this 
inqirovenient.” 


Page  212. 

Operations  in  1848. — Report  of  Board  of  I^itblic  AVorks 
FOR  1848.— “The  first  board  of  ])ublic  works  * * * of  Wis- 
consin. * * * Their  operations  (‘onsisted  in  making  sur- 

'*veys  and  jilans  of  im])rovenient  on  the  Fox  River,  and  of  the 
canal  at  “Portage,”  and  the  expenditures  were  ^1^1  ,(>31.81 . In 
the  plan  of  improvement  they  adopted,  they  decreased  the 
depth  proposed  by  Captain  Cram,  from  5 feet  to  4 feet  at  low 
water,  and  enlarged  the  dimensions  of  the  locks  from  110  feet 
by  30  feet  to  125  feet  hy  30  feet. 

“Captain  Cram  in  his  measurements  of  the  fall  on  the  rapids 
of  the  Lower  Fox  necessary  to  be  overcome  by  dams  and  locks, 
iras  eonsiderahly  under  the  mark,  and  he  does  not  enumerate 
among  the  list  of  rapids  the  Cedar  Rapid  just  above  Little 
3520  Chute,  or  else  includes  them  both  in  one.  For  convenience  of 
reference  in  the  report  of  operations  following,  T will  give  now 


540 


ii  (‘()]Tect  list  of  the  several  rapids,  with  their  distance  apart, 
and  the  fall  at  each  as  it  was  ascertained  at  the  time  of  the 
examination  made  by  iVLajor  Snter,  in  38GG.  * * * 

‘^Jjist  of  rapids  on  Lower  Lox  lliver,  with  amount  of  fall  and 
distances  apart  between  head  of  each. 


Name. 

Fall. 

Distance 

apart. 

feet 

miles 

Depere 

8 

0 

ifittle  Kaukana,  (or  Kakalin) 

Jtapide  Croche 

8 

6 

8 

G 

Grand  Ixaukana 

50 

44 

Little  Chute 

38 

oi 

Cedar  Eapid 

10 

oi 

Grand  Chute 

38 

4 

AVinnebago  Eapid 

10 

Green  Bay  to  Lake  Mhnnebago 

170 

28 

(Ibid.,  p.  212.)” 


Page  213. 

Character  of  the  Wisconsin  and  Difficulty  of  Improv 
iNG  ITS  Channel,  &c. — ^‘An  examination  of  the  Wisconsin 
Eiver  below  Portage  was  made  in  1849  by  the  chief  engineer, 
Mr.  Alton.  (His  full  report  is  given  in  the  assembly  journal 
for  1850,  p.  571.)  The  following  from  this  report  is  interest- 
ing, and  shows  views  held  in  regard  to  the  Wisconsin  Eiver 
which  ruled  at  this  period  in  the  progress  of  the  improve- 
ments. At  the  time  of  the  examination,  the  river  being  at  an 
‘extremely  low  stage,  a channel  having  not  less  than  24  feet 
could  be  traced  the  entire  distance  from  ‘Portage’  to  the 
month.  ’ He  further  says  : 

“The  general  character  of  the  stream  is  such  that  it  would 
be  extremely  difficult,  if  not  impossible,  to  make  any  improve- 
ment in  the  channel  by  the  ordinary  method.  The  current  is 
uniformly  strong,  running  at  the  rate  of  3 or  4 miles  an  hour 
frequently  divided  into  several  channels  or  sloughs  inter- 
spersed with  numerous  sand-bars,  and,  io  one  eniirely  unac- 
quainted with  it,  it  would  seem  to  present  insuperahle  ob- 
stacles to  navigation^ 

“Mr.  Alton  thought  the  overhanging  trees  the  greatest  ob- 
stacle in  the  way  of  light  draught  boats,  and  recommended 
that  they  should  be  cut  away  and  a few  snags  removed.  He 
also  thought  the  steam  dredge  boat  should  be  set  to  work  to 
cut  an  entire  new  channel  from  about  half  a mile  below  “the 
lower  ferry”  (probably  Bridgeport)  to  the  Mississippi,  fol- 
lowing a line  of  sloughs  or  pond-holes,  as  exhibited  on  a ma]) 
accompanying  the  report,  and  that  one  of  the  present  channels 


.1-11 


of  the  ^^ls(‘()llsin  should  ho  ('losod  up.  Ilo  (;stiuuit(Ml  tlu*  (Ui- 
tiro  oust  of  tills  at  $(),()(K).” 

“dlio  total  oxpoiidiluros  iii  1841)  wore  as  follows:  * * * 
Total,  i]^4r),L>44.():h” 

“Ou  the  WIsoousIti  Kiver  soiuo  portion  of  the  overharii^in^ 
trees  that  interfered  with  the  navigable  ohannel  was  out  down 
and  relno^^ed  last  winter.  A erane-soow  for  the  removal  of 
snags  and  to  afford  facilities  for  the  cutting  and  removal  of 
such  trees  as  may  still  interfere  with  the  navigation  was  con- 
structed in  the  autumn. 

^‘Tlie  following-named  expenditures  were  made  in  18.10: 

^ Total,  $59,048.71.” 

Ihige  214-16. 

Operations  of  1851. — Report  of  Board  of  Public  IVorks 
FOR  1851. — The  fourth  annual  report  of  the  hoard  of  public 
works  of  the  work  done  in  1851,  dated  January  2,  1852,  gives 
the  following  information: 

(Here  follows  a descrijition  of  elaborate  works  and  jilans 
for  further  works  to  cost  $52,^:64.36.) 

Plan  of  Improving  the  Wisconsin  by  Acting  Commissioner 
Croswell. — ‘‘I  trust  I may  be  allowed  respectfully  to  allude 
to  the  present  navigable  condition  of  the  Wisconsin  River  be- 
low Portage.  On  that  point,  much  neglected  as  it  has  been, 
blit  little  has  hitherto  been  said,  and  much  less  accomplished, 
by  way  of  improvement.  The  opinion  has  been  indulged,  and, 
in  my  humble  judgment,  too  readily  so,  that  very  little,  if  any- 
thing, ean  be  done  to  aid  the  navigation  of  that  stream  be- 
tween Fort  Winnebago  and  the  Mississippi.  According  to  a 
former  rei)ort,  the  ])rincipal  obstacles  to  its  improvement 
were  found  at  the  ditferent  jioints  on  the  river  where  the 
stream  is  widest.  At  such  ])laces  the  depth  of  mater  is  neces- 
sarily less  than  in  the  narrower  ])ortions,  (216)  where  the 
current  is  more  ra])id.  Prom  such  observations  as  my  posi- 
tion in  the  board  for  the  ])ast  two  years  has  enabled  me  to 
make,  and  from  the  ex])erience  of  those  most  familiar  with  the 
obstrudions  of  the  stream,  the  o])inion  has  lieen  forced  upon 
me  that  if  the  whole  volume  of  water  at  the  head  of  these  fiats 
was  turned  to  one  of  the  shores,  all  the  main  difficulties  in  the 
way  of  the  successful  navigation  of  the  Wisconsin  would  at 
once  be  overcome.” 


Page  217. 

Condition  of  the  \¥isconsin  River  Improvement,  &c. — 
copy  here  the  report  of  Acting  Commissioner  William  Richard- 
son, dated  January  1,  1853, ‘as  it  gives  an  authentic  and  com- 
plete account  of  all  that  had  been  done  up  to  this  time  on  this 
])art  of  the  improvement: 

‘H  commenced  at  the  Portage  Ckinal  and  have  ]iroceeded 


/ lidve  seven  (Id ins  ereefed,  (ind  fn'o  non'  in  course  of  erec- 
tion. The  ((f/f/rcfjdfe  length  in  linear  feet  of  the  nine  dams  is 
4,205,  and  construeted  at  a cost  of  about  $11,000.  In  putting 
n (lam  acu'oss  a l)ran<*li  of  the  river  where  a eonneetion  could 
he  made  with  an  island,  I liave  generally  located  the  dam  some 
(lislaiK'e  from  the  head  of  the  island,  for  the  following  rea- 
sons: tirst,  the  dam  thus  located  is  not  subject  to  a raking  ef- 
fect of  the  current,  as  would  be  the  case  if  the  location  was  at 
the  head  of  the  island;  second,  a large  recess  is  formed  for 
the  accumulation  of  sand  above  the  dam,  whicli  will  add  great 
strength  to  it;  lastly,  the  fall  l)elow  the  dam  to  the  foot  of  the 
island  ])eing  hut  little,  the  water  below  the  dam,  dur- 
ing a rise  in  tlie  river,  will  keep  very  nearly  upon 
a level  with  that  above;  consequently,  when  the  water 
Hows  over  the  dam  there  will  be  no  danger  of  an 
nndermining  process.  I have  had  the  dams  given  good 
width  of  base,  and  raised  tliem  but  little  above  low-water 
mark,  believing  it  unnecessary  to  obstruct  the  free  flow  of  the 
water  when  high.  There  has  been  expended  under  previous 
administrations  of  the  board  of  public  works,  in  surveys, 
&c.,  upon  this  river,  * * ^ making  the  aggregate 

amount  of  expenditure  or  liability  incurred  for  the  improve- 
ment of  this  stream  up  to  the  time  of  finishing  the  two  dams 
aliove  mentioned,  $16,372.73. 

‘^Several  of  the  dams  are  under  water,  and,  from  a careful 
observation,  I am  satisfied  that  the  current  will  produce  no 
injurious  effect  upon  them.  If  these  dams  produce  the  desired 
effect,  (which  I have  no  doubt  of,)  I think  it  is  safe  to  as- 
sume that  unobstructed  navigation  from  the  mouth  of  the 
river  to  Portage  City,  for  steamers  drawing  2 feet  tvate'r,  can 
be  effected  for  a sum  not  exceeding  $25,000,  which,  added  to 
the  present  liabilities,  (218)  will  make  the  sum-total  for  this 
part  of  the  improvement  $41,372.73,  which  is  certainly  a less 
sum  than  the  law  sets  apart  for  the  same. 

‘‘I  have  employed  a small  force  in  clearing  overhanging  tim- 
l)er  from  the  channel. 


54: 


“ I^^Xl’KNDITlJKKS  IVIaDK  IN  1852. 


Depere  

l\api(le  C^roelie  

(Iraiid  Kaukaiia  [ Divided  eciually  in  the  eonsoli- 

Little  Chute  ^ dated  table.— (I.  K.  W 

Cedar  liapids  

Grand  Chute  

Upper  Uox^  dredging 

Portage  Canal  

Wisconsin  Kiver,  survey,  $491.16;  improvement, 

$11,000  

Contingencies,  including  patent  for  lock-gates,  &c.. 


$ 15.00 

4,648.94 

47,262.42 

9,559.17 

22,993.2:1 

2,433.15 

23,227.29 

11,491.16 

15,513.19 


137,143.55 
(Ibid.,  219.)” 


Pages  223-4-5. 

Progress  of  the  Fox  and  Wisconsin  River  Improvement 
Subsequent  to  1855- ’56. 

(224)  '‘The  company  have  two  powerful  dredge  boats,  which 
will  be  engaged  in  deepening  the  upper  river  at  all  points 
which  may  be  necessary  during  the  next  year.  Two  wing- 
dams  have  been  built  in  the  vicinity  of  Princeton  on  the  bars, 
which  contract  the  water  and  form  a good  channel  over  the 
bars.  Several  more  wing-dams  will  be  built  the  coming  year 
between  Princeton  and  Berlin,  and  these,  with  the  dredging 
which  will  be  done,  will  form  a good  channel  for  lioats  draw- 
ing 34  feet  of  water  at  all  ])laces  on  the  [T])per  Fox  during 
ordinary  low  water  on  said  river. 

"A  dam  and  lock  have  been  ])artially  built  at  Montello.  A 
new  lock  has  been  built  at  Fort  Winnebago,  on  the  site  of  the 
one  built  liy  the  State,  and  sunk  5 feet  lower  than  the  old  lock, 
to  give  sufficient  depth  for  navigation.  It  is  now  antici])ated 
that  a lock  and  dam  of  low  lift  may  have  to  be  built  about  four 
miles  l)eIow  Fort  Winnebago  in  consecinence  of  the  trouble  ex- 
perienced  in  keeping  that  ])art  of  the  river  open  for  naviga- 
tion.” 


Pages  230-1. 

Condition  of  the  I ower  Fox  River  Improvement  in  1866. — 
“The  Depere  dam  is  located  at  the  head  of  natural  navigation 
of  the  Fox  River,  5 miles  above  the  town  of  Green  Bay,  and  7 
miles  above  the  month  of  the  river.  It  is  1,400  feet  (231) 
long  and  6 feet  high,  and  in  good  order.  The  canal-section  is 
750  feet  long,  and  forms  a basin.  The  lock  is  composite,  with 


AV()()(1(M1  hotloiii,  is  UO  feet  long-,  35  fc*(it  wide,  17  feet  liigli,  8 
Jeet  lift,  witli  4 feet  3 inelies  on  the  lower  miter-sill.  Four 
feet  three  inehes  is  tlie  greatest  deptli  attained  on  the  lower 
miter-sill,  but  when  the  wind  blows  out  of  Green  Bay,  tliere 
is  sometimes  not  more  than  2 feet.  large  i)iece  of  shoal 

water  inteiwenes  between  the  lock  and  the  channel  of  the 
rivei'.  The  bottom  is  solid  rock. 

. “The  upper  level  has  b feet  or  more  depth  of  water  to  within 
half  a mile  of  Inttle  Kaukana  lock,  where  it  diminishes  to  5 
and  4.” 

Kstimate. 

“To  make  4 feet  draught $45,000 

To  make  6 feet  draught  up  to  the  next  lock,  with  locks 

320  by  35  feet,  will  require 83,300 

“The  Little  Kaukana  dam  is  0 miles  al)ove  Depere.  It  is  550 
feet  long  and  6 feet  high.  It  is  (piite  level,  but  leaks  consider- 
ably.” 

“The  canal  leading  around  the  dam  is  feet  long,  with 

the  lock  at  the  lower  end.  The  lock  is  composite,  160  feet  long, 
35  feet  wide,  19  feet  high,  bottom  of  rock,  head-walls  of  ma- 
sonry, is  in  good  condition,  needing  no  repairs.  It  has  8 
feet  lift,  with  depth  on  lower  miter-sill  of  5 feet  8 inches. 

“The  level  above  has  about  4 feet  depth,  hut  the  channel  is 
quite  crooked,  and  to  be  (available  for  vessels  of  4 feet  draught 
the  dam  must  be  repaired  and  raised  1 foot  to  make  6 feet 
draught  the  dam  must  be  raised  3 feet  and  straightened;  the 
canal-banks  and  the  lock  must  also  be  raised,  and  the  latter 
lengthened  60  feet  for  boats  220  feet  long. 

“The  Ba])ide  Croche  dam  is  6 miles  above  Little  Kaukana. 
It  is  440  feet  long,  6 feet  high,  and  in  good  condition.  A 
canal  1,800  feet  long  runs  from  the  dam  across  a point  of 
land.  At  the  lower  end  is  a fine  stone  lock,  the  only  one  in 
the  improvement,  all  the  others  being  composite.  It  cost 
$60,000.  The  lock  is  160  by  35  feet,  19  feet  high,  with  8 feet 
lift,  and  depth  of  6 feet  6 inches  on  the  lower  miter-sill. 

“The  level  above  has  5 feet  de])th  to  within  half  a mile  of  the 
upper  end,  where  loose  stones  on  the  bottom  cause  the  depth 
to  vary  hetiveen  3 and  5 feet.  These  stones  must  be  removed. 

“To  get  6 feet  draught,  the  dam,  canal-banks,  and  lock-wall 
should  be  raised  1 foot  and  the  upper  level  cleared  of  loose 
stones.  For  vessels  220  feet  long  the  lock  must  be  lengthened 
60  feet. 

“The  Grand  Kaukana  dam  is  41  miles  above  the  Eapide 
Croche.  It  is  583  feet  long  and  6 feet  high,  ft  is  in  a very 
dilapidated  condition  and  should  be  rebuilt.  The  canal  around 
the  rapids  is  7,400  feet  long,  overcoming,  by  means  of  five 
locks,  a fall  of  50  feet.  The  average  width  of  the  canal  on  to]) 


545 


is  L‘)0  IVet,  with  two  basins  for  boats  to  pass.  These  loeks  are 
all  composite,  lOO  feet  by  35  feet,  witli  bottoms  of  rock. 

Pages  1^34-h.’^ 

3)53!)  “The  following  table  is  made  ii})  from  the  figures  of  Major 
Snter’s  re])ort,  as  modified  by  me  in  arrangement  in  the  fore- 
going abstract : 

’'Taut.e  m Kegard  to  the  I^ower  Fox  River  in  the  Autumn  of 

1867. 


Inter- 

Distance 

Number 

mediate 

from  mouth 

of 

Elevation 

Place.  Distance. 

of  river. 

locks. 

overcome. 

miles. 

miles 

feet 

De])ere  dam 

7 

7 

1 

8 

Little  Kaukana,  dam 

6 

13 

1 

8 

Rapide  Croclie,  dam 

6 

19 

1 

8 

Grand  Kaukana,  dam 

44 

234 

5 

50 

Little  Chute,  dam 

2| 

26" 

4 

38 

Cedars,  dam 

Of 

26f 

1 

10 

Appleton,  lower  dam 

3 

29f 

1 

84 

Appleton,  upper  clam 

Of 

304 

3 

294 

Menaslia,  dam 

Lake  Winnebago 

5 

35i 

1 

10“ 

2 

374 

Total 

374 

18 

170’’ 

(Continued  next  page.) 

3540  ^ ^ Table  in  ] iegabd  to  the  Lower  Fox  River  in  the  Autumn 

OF  1867. 

(Concluded.) 


Cost  of  making  navigation 
from  one  dam  to  next  above. 


For  4 feet 

For  6 feet 

Height 

draught. 

draught. 

above 

locks 

locks 

Place.  Green  Bav. 

160  X 35. 

220  X 35. 

feet 

Depere  dam 

8 

$45,000.00 

$83,300.00 

Little  Kaukana,  dam 

16 

3,000.00 

27,730.00 

Rapide  Croche,  dam 

24 

4,000.00 

41,000.00 

Grand  Kaukana,  dam  74 

22,800.00 

111,670.00 

Little  Chute,  dam. 

112 

17,530.00 

77,200.00 

Cedars,  dam 

122 

3,930.00 

23,400.00 

Appleton,  lower  dam  1301 

11,000.00 

Appleton,  upper  dam  160 

18,870.00 

63,870.00 

Men  ash  a,  dam 

170 

13,276.00 

54,200.00 

Lake  Winnebago 

170 

Total 

$118,400.00 

$493,370.00” 

546 


‘‘About  7 liiilos  below  Tortuge  u stream  called  Big  Slough 
comes  into  the  Fox.  Jturiug  liigh  water  this  eoimeets  with 
the  VViseoiisiii  and  becomes  a very  eonsideral)le  stream,  bring- 
ing a large  volume  of  water  into  the  Fox.  In  fact,  the  greater 
})art  of  the  low  country  between  the  two  rivers  is  overflowed 
by  the  Wisconsin  at  this  time. 

“Tlie  canal  at  present  is  almost  filled  up  with  sand,  but  it  is 
being  dredged  out. 

“The  only  plan  of  improvement  of  the  Upper  Fox  Elver 
which  gives  promise  of  permanency  is  to  create  slack-water 
navigation  throughout  the  whole  length  of  the  stream  by 
means  of  locks  and  dams.  As  a great  deal  of  valuable  prop- 
erty would  be  overflowed  and  ruined  by  putting  in  high  dams 
and  locks  of  great  lift,  it  appears  preferable  to  use  low  dams, 
say  3 feet  high,  and  then  lower  the  bed  of  the  stream  above 
and  below  the  dam  by  dredging  sufficiently  to  destroy  the  cur- 
rent. Further  dredging  will  give  the  requisite  depth  for  navi- 
355  gation,  and  the  channel  thus  made  will  remain  permanent. 

“The  volume  of  the  Upper  Fox  at  low  water  islibt  stated 
by  Major  Suter,  nor  have  I seen  it  stated  for  any  point  of  its 
course.  At  the  lock  near  Fort  Winnebago  it  is  a very  small 
stream  at  low  water,  merely  sufficing  as  a feeder  to  slack  water 
navigation.  Its  amount  is  of  no  practical  importance  in  this 
view,  for  any  needed  supply  can  be  drawn  from  the  Wiscon- 
sin Eiver,  which  is  the  feeder  for  the  canal  connecting  the 
two  streams.’’ 


Fox  Eiver. 

AYe  have  quoted  thus  fully  from  the  report  upon  the  Fox  Eiver 
because  that  stream  by  its  historical  conditions  so  nearly  parallels 
the  Ues  Plaines.  There  are  no  difficulties  in  the  Des  Plaines 
which  are  not  surpassed  by  those  in  the  Fox  Eiver. 

It  was  contended  contra  that  Fox  Eiver  was  a river  four  feet 
deep  and  therefore  no  parallel  to  the  Des  Plaines. 

The  report  (pp.  206-7)  states  of  the  Wisconsin  Eiver  that: 

“the  general  depth  of  the  water  is,  at  the  ordinary  height  of 
the  water,  4 to  5 feet;  that  the  sand-bars  often  extend  en- 
tirely across  the  river,  and  have  not  more  than  8 or  10  inches 
of  water.  The  sands,  however,  are  quick,  and  oppose  but 
little  resistance.” 

Mr.  Alton  in  1849  reports  from  examination  at  an  extremely 
low  stage  that: 

“A  channel  having  not  less  than  2^  feet  could  be  traced  the 
entire  distance  on  the  Wisconsin  from  the  portage  to  the 
mouth.  ’ ’ 


''riiis  was  not  llic  Fox  River  wliere  the  miniiimin  of  8 and  10 
inelies  was  encountered. 

AVe  have  seen  by  the  profile  of  1883,  the  standard  low  water 
profile  of  the  lies  Plaines,  there  were  two  places  where  there  was 
not  more  than  2 feet  of  water  in  the  entire  reach  under  question. 

The  reports  show  that  the  navigation  of  the  Fox  and  AVisconsin 
had  been  improved  by  the  expenditure  in  1849  of  $45,000,  and  in 
1850  of  $59,000,  and  in  1851  of  $16,000  and  in  1852  of  $137,000. 
All  this  had  been  expended  on  the  river  prior  to  October  1,  1867. 
That  was  the  date  of  the  voyage  complained  of  in  the  Alontello 
case,  11  AA^allace,  411.  The  Montello  was  a boat  of  20  tons  burden 
and  upwards  navigating  the  Fox  River  between  Oshkosh  and 
Portage  City.  It  was  libeled  by  the  District  Attorney  of  the 
United  States  for  navigating  navigable  waters  of  the  United  States 
without  having  complied  with  the  Federal  Statutes  as  to  steam 
boiler  appliances  and  inspection  and  as  to  licensing  of  the  vessel. 

The  District  Court  dismissed  the  libel  for  want  of  jurisdic- 
tion. 

The  Supreme  Court  reversed  the  decision,  sustained  the  juris- 
diction for  the  libel  and  ordered  a trial  on  the  merits. 

The  Montello,  11  AValh,  411. 

The  District  Court  then  tried  the  case  on  the  merits  and  dis- 
missed the  libel  on  the  ground  that  the  stream  was  not  a navigable 
water. 

The  immense  falls  170  feet  in  28  miles  were  relied  on  as  evi- 
dence that  the  stream  in  its  natural  state  was  not  navigable.  Once 
more,  these  falls  were  as  follows : 

‘^For  convenience  of  reference  in  the  report  of  operations 
following,  I will  give  now  a correct  list  of  the  several  rapids, 
with  their  distance  apart,  and  the  fall  at  each  as  it  was  ascer- 
tained at  the  time  of  the  examination  made  by  Alajor  Suter, 
in  1866.  It  is  as  well  to  note  here  that  the  map  jmblished 
witli  our  report  gives  two  locations  of  Rapide  Croche;  the 
upper  one  is  the  location  of  the  dam,  tlie  other  is  a mistake. 

List  of  rapids  on  Lower  Fox  River,  with  amount  of  fall  and 
distances  apart  between  head  of  each: 


Name 

Distance 

Fall 

apart 

feet 

miles 

Depere 

8 

0 

kittle  Kaukana,  (or  Kakalin) 

Ra])ide  Choche 

8 

6 

8 

6 

Grand  Kaukana 

50 

4.1 

kittle  Chute 

38 

2 1 

Cedar  Rajiid 

.10 

of 

(irand  Chute 

38 

4 

Winnebago  Rapid 

10 

41 

Green  Bay  to  Lake  Winnebago 
(Abst.,  ) 

170 

28  “ 

Plere  are  falls  of  50  feet  in  4f  miles;  of  38  feet  in  24  miles;  of 
10  feet  in  f of  a mile;  and  other  falls.  The  court  held  that  the 
river  was  naviglde  in  its  natural  stale  in  spite  of  all  these  difhcnl- 
ties,  many  of  which  were  impassable  by  water  where  it  became 
necessary  to  leave  the  stream  and  port  the  vessel  and  its  cargo 
around  the  obstruction  by  land. 

The  court  said: 


Fox  River. 

From  the  decision  in  the  Montello  case  (20  Wall.,  430)  : 

^‘In  its  natural  state,  there  were,  however,  in  parts  of  tho' 
Fox  River  rapids  and  falls.  At  Grand  Chute  there  was  a 
rock  making  a fall  two  feet  perpendicular;  and  below  certain 
rapids  known  as  the  De  Pere,  the  navigation  was  especially 
difficult.  There  were  many  other  similar  though  less  difficult 
places.  All  these  embarrassed  the  navigation  of  early  days, 
but  they  did  not  destroy  nor  even  much  arrest  it.  The  stream 
was  always  used  for  purposes  of  trade;  including  especially 
tlie  great  fur  trade,  a trade  carried  on  before  our  Revolution, 
and  when  French  and  British  were  pursuing  their  adven- 
turous commerce  far  into  the  savage  regions  of  the  Northwest. 
Smith,  the  historian  of  Wisconsin,  states  that  even  so  far 
back  as  1718,  one  of  Ghe  great  avenues  from  the  St.  Law- 
rence to  the  Mississippi  was  by  way  of  Fox  and  Wisconsin 
Rivers.’  In  1673  Marquette  and  Joliet,  French  explorers  of 
the  source  of  the  Mississippi,  followed  the  line  of  the  two 
streams  mentioned.  The  stream  was  then  navigated  by  long, 
narrow  boats,  called  Durham  boats — vessels  from  seventy 
to  one  hundred  feet  long  and  twelve  broad,  drawing,  when 
loaded,  from  two  to  two  and  a half  feet  of  water — which  men 


541) 


would  i)iish  with  i)()les  or  ])roi)cd  by  ours,  or  havo  dragged 
by  horses  and  mules;  sometimes,  in  very  shallow  water,  wa(J- 
ing  alongside  and  pushing  the  boats  onward  themselves.  At 
places  where  progress  on  tlie  stream  was  impracticable  the 
vessel  would  be  unloaded  and  a ‘i)ortage’  made,  till  the  nav- 
igator had  got  beyond  the  difficult  place,  and  then  a reship- 
nient  would  be  made  of  the  merchandise  into  some  other 
boat  beyond,  or  into  the  same  boat,  whicii  unloaded,  and  draw- 
ing less"  water  than  before,  could  be  got  across  the  place  that 
in\i  loaded  state  had  stopped  it.  Arriving  at  the  very  source 
of  the  Fox  Kiver,  a ‘])ortage’  of  less  than  two  miles  would 
l)e  made,  and  the  merchandise  was  on  the  Wisconsin,  and 
thence  it  floated  to  the  Mississippi.  In  May,  1838,  a regular- 
line  of  Durham  boats  was  advertised  to  run  from  Green  Bay, 
near  Lake  Michigan,  to  the  portage  at  the  head  of  the  Fox 
Eiver. 

'‘Tlie  State  of  ILisconsin  accepted  the  grant,  and,  pursuant 
to  the  authority  and  power  vested  in  the  State,  a company 
was  incorporated  by  an  act  approved  July  6th,  1853^  for  the 
improvement  of  the  Fox  and  Wisconsin  Rivers.  That  act 
vested  in  the  corporation  all  the  rights  and  privileges  granted 
to  the  State  by  the  act  of  Congress.  And  the  improvement 
company  in  carrying  out  the  objects  of  its  creation,  built 
dams,  locks,  and  canals  in  Fox  Eiver,  from  Eortage  City  to 
below  De  Pere  Eapids.  Tlie  works  of  this  company  were  on  a 
grand  scale,  and  by  them’ Fox  Eiver  was  changed  from  its  nat- 
ural condition  to  an  improved  thoroughfare,  for  the  use  of 
which  all  boats  were  required  to  pay  toll.  * * 

^Mn  consequence  of  tlie  acts  of  Congress,  and  of  the  State, 
and  of  the  increase  of  trade  from  the  Northwest,  over  the 
IVisconsin  Eiver,  across  the  portage,  and  upon  the  Fox 
Eiver  and  the  lakes,  the  Pox  Eiver  was  cleared  of  the  ob- 
structions caused  by  the  rapids,  or  falls,  and  the  difficult  or 
impracticable  passes  were  removed  by  locks,  canals,  dams,  and 
other  artificial  navigation,  so  that  there  was  now,  and  had 
been  for  several  years,  uninterrupted  water  communication 
for  steam  vessels  of  considerable  capacity  from  the  Missis- 
sipi;!  to  Lake  Michigan,  and  thence  to  the  St.  Lawrence, 
through  the  Wisconsin  and  Fox  Rivers;  and  steamboats  had 
passed,  and  were  constantly  passing,  over  these  rivers  with 
])assengers  and  freight  destined  to  ]mints  and  places  out- 
side of  the  State  of  Wisconsin.” 

* * * # * 

‘^The  court  below — resting  its  decision  on  the  ground  thaf 
before  the  navigation  of  the  river  was  artificiaUg  improved 
there  had  been  numerous  obstructions  to  a contTnuous  navi- 
gation, especially  below  the  De  Pere  Eapids — decided  that 
the  river  was  not  a part  of  the  public  navigal)le  waters  of  the 
United  States,  within  the  doctrine  laid  down  in  The  Daniel 


50 


Ball,  and  The  Moniello,  and  dismissed  the  libel.  The  United 
States  appealed,  and  now  assigned  as  error — ” 

* * iff  ik  ih 

j\Ir.  fJnstiee  JJavjs  delivering  the  opinion,  said: 

* 

^‘The  Fox  Jviver  has  its  source  near  Portage  City,  Wiscon- 
sin, and  flows,  in  a northeasterly  direction,  through  Lake 
AVinnebago  into  Green  Bay,  and  thence  into  Lake  Michigan, 
and  by  means  of  a short  canal  of  a mile  and  a half  it  is  con- 
nected at  Portage  City  with  the  -Wisconsin  Piver,  which 
empties  into  the  Mississippi.  Prom  its  source  to  Oshkosh 
the  river  is  frecpiently  spoken  of  as  the  'Upper  Fox.'  From 
Lake  AVinnebago  to  Green  Bay  it  is  called  the  'Lower  Fox.' 
There  are  several  rapids  and  falls  in  the  river,  but  the  ob- 
structions caused  by  them  have  been  removed  by  artificial  nav- 
igation, so  that  there  is  now,  and  has  been  for  several  years, 
uninterrupted  water  communication,  for  steam  vessels  of 
considerable  capacity  from  the  AUssissippi  to  Lake  Alichi- 
gan,  and  thence  to  the  St.  -Lawrence,  through  the  Wisconsin 
and  Fox  Kivers ; and  steamboats  have  passed,  and  are  con- 
stantly passing,  over  these  rivers  with  passengers  and  freight 
destined  to  points  and  places  outside  of  the  State  of  Wis- 
consin. 

"It  is  said,  however,  that  although  the  Fox  Eiver  may  now 
be  considered  a highway  for  commerce,  over  which  trade  and 
travel  are,  or  may  be,  conducted  in  the  ordinary  modes  of 
trade  and  travel  on  water,  it  was  not  so  in  its  natural  state, 
and,  therefore,  is  not  a navigable  water  of  the  United  States 
within  the  purview  of  the  decisions  referred  to. 

"It  is  true,  without  the  improvements  by  locks,  canals  and 
dams,  Fox  Eiver,  through  its  entire  length,  could  ont  be  nav- 
igated by  steamboats  or  sail  vessels,  but  it  is  equally  true  that 
it  formed,  in  connection  with  the  AVisconsin,  one  of  the  ear- 
liest and  most  important  channels  of  communication  between 
the  Upper  Aiississippi  and  the  lakes.  It  was  this  route  which 
Alarquette  and  Joliet  took  in  1673  on  their  voyage  to  discover 
the  Alississippi ; and  the  immense  fur  trade  of  the  Northwest 
was  carried  over  it  for  more  than  a century.  * * * more 
modern  times,  and  since  the  settlement  of  the  country,  and 
before  the  improvements  resulting  in  an  unbroken  navigation 
were  undertaken,  a large  interstate  commerce  has  been  suc- 
cessfull^v  carried  on  through  this  channel.  This  was  done  .by 
means  of  Durham  boats,  which  were  vessels  from  seventy  to 
one  hundred  feet  in  length,  with  twelve  feet  beam,  and  drew 
when  loaded  two  to  two  and  one  half  feet  of  water.  These 
boats,  propelled  by  animal  power,  were  able  to  navigate  the 
entire  length  of  Fox  Eiver,  with  the  aid  of  a few  portages, 
and  would  readilv  carrv  a verv  considerable  tonnage." 

The  Moniello  (Heed.  Abst.,  p.  933-4),  20  AVall.,  430. 


Till']  OHIO  RIVER  AND  TILE  RAPIDS  OF  THE  OHIO. 


The  Falls  of  tlie  Oliio  are  thus  described  by  Thomas  Hutchins, 
Surveyor  General  of  tlie  United  States,  in  a letter  written  in  1778 
from  a ijersonal  examination  in  1766,  and  published  in  1797  in 
Jmlay’s  Topographical  Description  of  the  Western  Territory  of 
Xorth  America,  pp.  489-490  (Abst.,  pp.  938-9). 

The  passage  by  Surveyor  General  Hutchins  is  as  follows: 

^‘The  navigation  of  the  Ohio  in  a dry  season  is  rather 
troublesome  from  Fort  Pitt  to  the  Mingo  town  (about  75 
miles),  but  from  thence  to  the  Mississippi  there  is  always  a 
sufficient  depth  of  water  for  barges  carrying  from  100  to  200 
tons  burden,  built  in  the  manner  as  those  are  which  are  used 
in  the  river  Thames  between  London  and  Oxford; — to-wit, 
from  100  to  120  feet  in  the  keel,  16  to  18  feet  in  breadth,  and 
four  feet  in  depth,  and  when  loaded,  drawing  about  three  feet 
water. 

“The  rapids,  in  a dry  season,  are  difficult  to  descend  with 
loaded  lioats  or  barges,  without  a good  pilot;  it  would  be 
advisable,  therefore,  for  the  bargemen,  in  such  seasons,  rather 
than  run  any  risk  in  passing  them,  to  unload  part  of  their 
cargoes,  and  reship  it  when  the  barges  have  got  through  the 
rapids.  It  may  however  be  proper  to  observe,  that  loaded 
boats  in  freshets  have  been  easily  rowed  against  the  stream 
up  the  rapids,  and  that  others,  by  means  only  of  a large  sail, 
have  ascended  tliem. 

‘Hn  a dry  season,  the  descent  of  the  ra])ids  in  the  distance 
of  a mile,  is  about  12  or  15  feet;  and  the  ])assage  down  would 
not  be  difficult,  except  perhaps  for  the  following  reasons:  Two 
miles  above  them  the  water  is  deep,  and  three-quarters  of  a 
mile  broad;  but  the  channel  is  much  contracted,  and  does  not 
exceed  250  yards  in  breadth  (near  three-fourths  of  the  bed 
of  the  river,  on  the  southeastern  side  of  it,  being  filled  with 
a flat  limestone  rock,  so  that  in  a dry  season  there  is  seldom 
more  than  six  or  eight  inches  water) ; it  is  upon  the  northern 
side  of  the  river,  and  being  confined  as  above  mentioned,  the 
descending  waters  tumble  over  the  Rapids  with  a consider- 
able degree  of  celerity  and  force.  The  channel  is  of  different 
depths,  but  nowhere,  I think,  less  than  five  feet.  It  is  clear, 
and  u{)on  each  side  of  it  are  large  broken  rocks,  a few  inches 


iiri(l(‘i-  water.*  Tlie  ra])i(]s  are  nearly  in  latitude  38^  8';  and 
the  only  Indian  villag’e  (in  1776)  on  the  banks  of  the  Ohio 
Iviver  between  them  and  fort  Pitt,  was  on  the  northwest  side, 
75  miles  l)elow  Pittsburgh,  called  the  Mingo  town;  it  contained 
00  families.’^ 

(The  ma])  made  ])y  Jlutchins,  referred  to  in  the  quoted  passage, 
is  shown  on  the  opposite  page,  and  appears  in  Imlay’s  work  at 
page  33. 

It  is  the  same  map  which  is  referred  to  by  Government  Engineer 
Gen.  Godfrey  Weitzel  in  tlie  extract  from  the  U.  S.  Engineer's  Ee- 
port  for  1882,  Vol.  If,  pp.  1881-3,  wliich  is  in  evidence  )Abst.,  j). 
1021).) 

Surveyor  General  Hutchins  in  Imlay’s  America,  pp.  489-490; 
(Abst.,  pp.  938-9). 


The  falls  of  the  Ohio^ 

Prom  the  Eeport  of  the  Chief  of  Eiigineers,  IT.  S.  A.,  1882,  Vol. 

IT,  pp.  1881-3,  by  Godfrey  Weitzel,  Major  of  Engineers: 

Desckiptiox. 

‘^The  obstructions  to  navigation  in  the  Ohio  Eiver,  known 
as  the  falls  of  the  .Ohio,  are  formed  by  an  irregular  mass  of 
limestone  lying  in  the  bed  of  the  river  about  600  miles  below 
tion  of  this  mass  of  rock  is  from  southwest  to  northeast.  It 
is  a natural  dam,  which  produces  a deep  pool  just  above,  the 
difference  of  level  between  the  water  surface  in  this  and  in 
the  pool  below  being  about  26  feet  in  low  and  about  18  inches 
in  the  highest  stages. 


^^*Colonel  Gordon,  in  his  journal  down  the  Ohio,  mentions 
Ghat  these  falls  do  not  deserve  that  name,  as  the  stream  on 
the  north  side  has  no  sudden  pitch,  but  only  runs  rapid  over 
the  ledge  of  a flat  rock;  several  boats,’  he  says,  W^ssed  it  in 
the  dryest  season  of  the  year,  unloading  one-third  of  their 
freight.  They  passed  on  the  north  side,  where  the  carrying- 
place  is  three-quarters  of  a mile  long.  On  the  southeast  side, 
it  is  about  half  the  distance,  and  is  reckoned  the  safest  pass- 
age for  those  who  are  unacquainted  with  it;  but  it  is  the  most 
tedious,  as  during  part  of  the  summer  and  fall  the  batteau- 
men  drag  their  boats  over  the  flat  rock.  The  fall  is  about 
half  a mile  rapid  water;  which  however  is  passable,  by  wading 
and  dragging  the  boat  against  the  stream,  when  lowest,  and 
with  still  greater  ease,  when  the  water  is  raised  a little.’  ” 
^‘See  the  annexed  plan.  It  is  a correct  description  of  these 
rapids,  made  by  the  editor  on  the  spot,  in  the  year  1770.” 


ff 

i 


'.ufc/iuHwclL^  j Ab/iuj  ut\f  pjAVjO'u’ji 


‘‘111  their  natural  eoiiditioii  iheso  falls  or  rajiids  \v(3re  iin- 
passable  during-  the  largest  portion  of  the  year,  and  at  all 
other  times,  excepting  when  the  river  was  very  high,  navi- 
gation over  them  was  difticnlt  and  dangerous.  When  th(‘  river 
was  high,  the  navigation  was  carried  on  in  it  without  any 
diflicnlty. 

“There  were  three  channels  over  these  obstructions,  known 
as  the  Indiana,  Middle  and  Kentucky  chutes. 

“The  former  is  the  main  and  longest  channel,  and  was  the 
one  most  navigated.  It  runs  near  the  Indiana  shore,  between 
it  and  Goose  Island,  and  makes  a large  bend  near  the  foot 
of  the  fall,  called  the  Big  Eddy.  It  was  4,659  yards, 
or  about  2 2/3  miles  long.  At  extreme  low  stages,  about  one- 
half  of  its  total  fall,  that  is,  13  feet,  occurred  in  the  first 
1,253  yards,  or  about  seven-tenths  of  a mile,  and  about  two- 
thirds  of  its  fall,  that  is,  174  feet,  occurred  in  the  first  1,986 
yards,  or  about  1-1/7  miles.  When  the  water  rose  7 feet  at 
the  crest  of  the  falls  above  extreme  low  water,  it  rose  about 
184  feet  at  the  foot  of  the  channel,  and  the  difference  of  level 
between  the  water  surfaces  in  the  two  pools  was  about  134 
feet.  At  this  stage,  the  steamer  Uncle  Sam  barely  made 
the  ascent  on  a trial.  The  steamer  was  owned  by  Mr.  Paul 
Anderson.  Her  measured  tonnage  was  440;  she  drew  94  feet 
of  water,  and  was  propelled  by  an  engine  of  250  horse-power. 

“The  Middle  chute  begins  about  the  middle  of  the  river 
and  passes  down  between  Goose  and  Eock  Islands.  The 
length  of  this  channel  is  about  3,800  yards,  or  2f  miles  long, 
and  about  22  feet,  or  almost  the  entire  fall  is  in  the  last  500 
yards.  All  boats  could  ascend  it  when  the  water  at  the  head 
rose  about  El  feet.  The  rise  in  the  pool  below  then  amounted 
to  about  29  feet,  and  tlie  difference  of  level  between  the  water 
surfaces  of  the  two  pools  was  then  reduced  to  about  9 feet. 

“The  Kentucky  chute  lies  nearer  to  the  Kentucky  shore, 
and  passes  down  between  it  and  Rock  Island.  Its  condition 
was  similar  to  the  Middle  chute  and  it  is  navigable  a little 
later  than  the  Middle  chute.  Almost  the  entire  falls  is  in  the 
last  185  yards.  The  shortest  line  across  this  natural  dam  is 
via  the  Middle  and  Kentucky  chutes,  and  is  about  3,300  yards 
or  1-11/12  miles  long. 

“The  observations  which  were  made  and  recorded  estab- 
lished the  fact  that  on  an  average  the  falls  were  not  navigable 
ten  and  a half  months  per  annum. 

“The  fact  that  these  obstructions  were  navigable  at  some 
stages  and  not  at  others  arises  from  the  circumstance  (as  in- 
dicated above)  that  when  the  river  rises  both  pools  rise,  but 
not  equally.  The  lower  one  rises  by  a greater  amount  in  a 
given  time  than  the  upper  one.  A similar  law  exists  as  tlie 


rivor  falls;  that  is,  the  lower  pool  falls  more  in  a given  time 
than  the  npper  one. 


^‘ir. — History. 

‘M'  have  recently  come  into  the  possession  of  a tracing  of 
an  engraving  made  for  ^CampbelPs  edition  of  Finlay’s  His- 
tory of  Kentucky,  1793.’  (This  is  the  cut  given  above,  as  a 
('om])arison  of  the  descrijition  wdiich  the  cut  shows.)  ‘^This  en- 
graving bears  the  title,  ‘A  plan  of  the  Eapids  of  the  Ohio.’ 
On  it  is  indicated  the  location  of  a proposed  canal  around 
these  obstructions,  and  there  is  a note  which  reads,  ‘From  A 
to  B a canal  is  intended  to  be  cut.’  The  point  A is  placed 
just  inside  of  the  mouth  of  Bear-Grass  Creek,  and  B just 
around  the  turn  in  the  Kentucky  shore  below  the  present 
mills  of  the  Louisville  Cement  Company.  The  canal  is  drawn 
running  parallel  to  and  but  a short  distance  inside  of  the 
Kentucky  shore  line. 

“It  seems,  then,  even  at  that  early  date  the  question  of 
constructing  a canal  around  these  obstructions  was  agitated. 
I have  not,  however,  been  able  to  discover  any  records  of  such 
agitation  earlier  than  1802.  Beginning  that  year,  various 
plans  were  from  time  to  time  suggested  and  attempted  to  be 
carried  out,  by  individuals,  associations,  appeals  to  Congress, 
and  incorporated  companies,  but  without  success. 

“The  Legislature  of  Kentucky  being  impressed  with  the  im- 
portance of  the  subject,  and  finding  the  General  Government 
disinclined  to  prosecute  the  work,  in  1825  granted  a charter 
to  a stock  company,  authorizing  them  to  construct  a canal 
around  the  Falls  of  the  Ohio  within  the  State  of  Kentucky. 
The  act  granting  this  charter  was  approved  January  12,  1825, 
and  fixed  the  time  of  completion  of  the  canal  at  three  years 
from  that  date.  It  becoming  apparent  that  the  company 
would  not  be  able  to  complete  the  work  in  that  time,  the  latter 
was  extended  by  three  subsequent  acts  to  February  6,  1831. 

“The  capital  stock  of  the  company  was  fixed  at  $600,000 
by  the  original  charter.  This  was  enlarged  by  two  subse- 
quent acts,  and  finally  fixed  at  $1,000,000.  By  the  acts  of 
Congress  approved  May  13,  1826,  and  March  2,  1829,  the 
Government  became  the  owner  of  2,335  of  the  10,000  shares  of 
stock  in  the  company,  for  which  it  paid  the  par  value,  $233,- 
500.  Both  of  these  acts  of  Congress  provided  that  the  Sec- 
retary of  the  Treasury  should  vote  for  president  and  di- 
rectors of  the  company  according  to  the  number  of  shares 
owned  liy  the  Government,  and  should  receive  upon  this  stock 
the  proportion  of  the  tolls  which  should,  from  time  to  time, 
be  due  to  the  United  States  for  the  shares  aforesaid. 

“Thus,  the  government,  for  the  first  time  in  its  history,  I 


holieve,  became  a stockholder  in  a private  corporation  (^liar- 
tered  by  a State,  and  that,  too,  in  one  whose  object  was  to 
overcome  obstructions  to  navigation  in  a national  higliway. 

'‘The  company  liad  great  diniculties  to  encounter  in  rais- 
ing money,  and  otherwise,  but  the  work  was  prosecuted  witli 
energy,  and  the  canal  was  opened  and  the  first  boat  passed 
through  it  on  December  22,  1830,  although  many  improve- 
ments on  it  were  subsecpiently  made.  As  originally  con- 
structed, it  was  1.9  miles  long,  64  feet  wide,  and  had  three 
combined  lift  locks  at  its  lower  end,  each  chamber  having  an 
available  length  of  about  185  feet,  a width  of  50  feet,  and  a 
lift  of  about  8 feet  5}  inches.  The  total  cost  of  the  work  was 
$1,019,277.09.  This  includes  the  purchase  of  land.  When 
the  canal  was  completed  its  dimensions  were  thought  to  be 
sufficient  for  all  time,  hut  in  a little  over  twenty  years  (in 
1852)  only  fifty-seven  one-hundredths  of  the  tonnage  engaged 
in  the  Western  rivers  could  pass  through  the  locks.’’ 

(Report  of  the  Chief  of  Engineers,  U.  S.  Army,  1882,  Part  II, 
pp.  1881,  1882,  1883.)  (Abst.,  pp.  1619-20-1-2.) 

With  respect  to  the  proposed  improvement  of  the  canal  (1859- 
1860),  the  report  continues: 

'^In  the  meantime  the  government  had  ordered  three  sur- 
veys of  the  Falls  of  the  Ohio.  These  were  made  in  1843,  1845, 
and  1853,  by  Captain  Cram,  Corps  of  the  Topographical  En- 
gineers; Lieutenant-Colonel  Long,  Corps  of  Topographical 
Engineers,  and  a Board  composed  of  Lieutenant-Colonel  Long 
and  Col.  William  Turnbull,  of  the  Corps  of  Topographical 
Engineers,  and  Mr.  Charles  B.  Fisk,  respectively.  No  action, 

however,  was  taken  upon  their  report. 

^ ^ ^ ^ ^ ^ 

‘^They  (certain  recommended  plans  for  improvements) 
consisted  in  widening  the  waterway  from  64  to  100  feet,  by 
removing  36  feet  from  the  south  side,  and  lining  both  sides 
with  a vertical  dry  wall,  17  feet  high,  in  fixing  the  depth  of 
water  in  the  canal  at  the  lowest  stage  to  be  6 feet  over  Lniter 
sill  and  all,’  in  removing  the  abrupt  angle  in  the  old  canal 
and  substituting  a regular  easy  curve,  in  providing  three  pass- 
ing places,  in  constructing  a guard-gate  at  the  head,  in  con- 
structing a dam  or  crib  protection  of  timber  and  stone,  about 
600  feet  long,  extending  eastwardly  from  the  head  of  the 
canal,  and  removing  all  the  projecting  points  of  rocks  inside 
of  it  to  protect  boats  passing  in  and  out  of  the  canal  from 
accident  or  delay,  by  being  carried  with  the  strong  current 
that  sets  out  over  the  falls  against  the  ledge  of  rocks,  and  in 
providing  a floating  boom  at  the  head  of  the  canal  to  exclude 
ice  and  drift;  the  new  locks  to  be  placed  1,500  feet  below  tlie 


old  locks  and  he  connected  witJi  the  old  (ainal  hy  a branch 
2,(kK)  i'eet  long,  the  locks  to  he  two  comhined,  each  liaving  a 
lift  of  13  feet,  and  tlie  rocks  at  the  foot  of  the  canal  to  he 
blasted  and  removed  to  open  a wide  and  safe  channel  for  going 
in  and  out  of  the  canal. 

‘‘To  save  expense  it  was  subsequently  concluded  to  re- 
duce the  width  of  water-way  to  90  feet.”  (Id.,  p.  1886.) 

“At  the  next  session  of  Congress  a ‘joint  resolution  pro- 
viding for  the  necessary  surveys  for  a ship  canal  around  the 
hhills  of  the  Ohio  Kiver,  for  military,  naval,  and  commercial 
pur2)oses,’  was  passed.  It  was  approved  March  29,  1867.  It 
authorized  and  directed  the  Secretary  of  War  to  cnuse  sur- 
veys, with  plans  and  estimates  of  cost,  to  be  made  by  an  offi- 
cer of  Engineers,  for  a ship-canal  around  the  Falls  of  the 
Ohio  Eiver,  on  the  Indiana  side  thereof,  of  suitable  location 
and  dimensions,  for  military,  naval,  and  commercial  pur- 
poses, and  also  to  cause  said  officer  to  estimate  the  expense 
of  comjDleting  the  Louisville  and  Portland  Canal,  on  the  Ken- 
tucky side  of  said  falls,  according  to  the  plan  on  which  the 
said  canal  company  was  then  proceeding  with  said  work. 

“I  was  assigned  to  this  duty  and  began  the  survey  in  July, 

1867.  My  report  on  it  is  dated  February  8,  1868,  and  may  be 
found  in  the  report  of  the  Chief  of  Engineers  for  the  year 

1868,  beginning  on  page  528. 

“The  bonded  indebtedness  of  the  company  at  this  time 
was  $1,567,000,  payable  in  almost  equal  amounts  in  1871, 
1876,  1881,  and  1886,  and  bearing  6 per  cent,  (currency)  in- 
terest, payable  semi-annually. 

“In  my  report  of  the  survey  I recommended,  for  the  rea- 
sons given,  not  only  the  immediate  enlargement  of  the  Louis- 
ville and  Portland  Canal,  but  also  the  immediate  construc- 
tion of  a new  canal  on  a proj)er  route  on  the  Indiana  side, 
with  a width  of  120  feet  and  new  locks  100  by  400  feet.  I be- 
lieved then,  and  do  nowy  that  the  radical  improvement  of  these 
obstructions  demanded  both,  and  that  the  commerce  of  the 
Ohio  Eiver  was  entitled  to  the  most  generous  treatment  at 
this  locality. 

“In  order  to  reduce  the  expense  of  rock  excavation,  and 
the  delay  attending  it  on  the  two  works,  and  believing  that 
with  these  two  canals  constructed  it  would  be  unnecessary  to 
risk  the  dangers  of  navigating  the  falls,  which  were  just  be- 
ing increased  by  the  construction  of  the  piers  for  a railroad 
bridge,  I recommended  the  construction  of  two  low-water 
dams;  one  of  these  across  the  river  at  the  crest  of  the  falls, 
and  the  other  below  New  Albany.  The  latter  was  afterwards 
changed  to  the  head  of  Sand  Island  to  give  more  water  in  the 
Kentucky  channel  and  thus  obtain  the  necessary  dei^th  there 
without  expensive  under-water  rock  excavation.”  (Id.,  1887.) 


still  ]'(‘(1ii(‘(m1  the;  width  of  llu;  (“<\nn\  to  jdjf)ut  85 

1Vh‘1.  lor  tlio  sake  oJ*  eeonoiiiy.  li  is  now  iieai-ly  Hill  te(;t  wifle. 
1 built  a iiigh-water  clianuel  in  the  river  througii  tlie  outer 
liali*  of  the  draw  in  the  railroad  bridge,  for  tlie  aeconnnoda- 
tion  of  boats  when  the  river  was  so  high  that  they  could  not 
pass  under  the  bridge  through  the  wide  span  without  lower- 
ing their  cliinmeys,  and  I made  the  apron  or  crib  dam  at  the 
head  of  the  canal  1,800  instead  of  600  feet  long,  and  raised 
it  very  considerably.”  {Id.^  p.  188.)  (Abst.,  pp.  1622-3-4.) 

THE  OHIO ^TESTIMONY  OF  WITNESSES  AS  TO. 

Captain  AVilliam  H.  Bing  (Abst.,  p.  663)  : 

Home,  Cincinnati;  age,  60;  steamboat  captain  and  pilot 
since  1873,  when  I was  licensed.  I have  navigated  the  Ohio, 
the  Great  Kanawha,  the  Big  Sandy,  and  the  Kentucky  (Abst., 
p.  663).  I have  seen  the  Ohio  vary  from  71  feet  deep  at  Cin- 
cinnati, I have  seen  it  run  as  low  as  12  inches,  from  12  to  14 
inches  between  Pomeroy,  Ohio,  and  Ironton ; there  are  several 
shallow  places  where  that  goes  down  to  about  12  inches;  the 
Ohio  Kiver  has  those  high  floods  and  low  water  periods  every 
year  (Abst.,  p.  663).  Most  every  summer  the  river  goes  as 
low  as  three  feet.  At  the  low  water  depth  of  12  inches  the 
water  was  not  12  inches  deep  over  the  entire  width  of  the 
channel,  but  only  in  the  chutes,  the  deepest  part  of  the  river. 

Th,e  Court : Let  me  understand ; a boat  going  down  through 
that  river  must  run  over  more  than  that  one  foot  of  water, 
must  it  not! 

A.  No,  sir. 

Q.  It  runs  over  the  one  foot  of  water! 

A.  The  small  boats  there.  Tlie  small  boats  in  the  river, 
when  it  gets  that  low. 

(^).  They  cannot  use  the  big  boats! 

A.  No,  sir. 

Mr.  Starr: — Q.  When  tlie  Ohio  river  gets  down  to  that  low 
stage  of  water,  what  is  done  in  the  way  of  navigation!  You 
say  the  large  boats  are  no  longer  able  to  go,  what  do  they  do! 

A.  There  is  a little  boat  that  goes  up  Sandy  Eiver;  we 
generally  get  them  up  the  Ohio  river. 

Q.  You  get  these  boats! 

A.  Yes,  sir;  when  we  cannot  use  the  larger  boats,  we  gen- 
, erally  use  the  boats  used  in  the  small  streams. 

They  navigate  and  carry  freight  on  those  small  stages  of 
water  that  occurs  whenever  the  river  gets  that  low.  It  is  not 
may  be  not  more  than  once  in  eight  or  ten  years  when  it  gets 
that  low;  but  I have  steamboated  on  littie  boats  wlien  the 
water  was  only  twelve  inches  in  the  river.  AYe  carry  light 
freight  and  passengers.  You  couldnT  carry  over  eight  or  ten 


tons  on  tliat  low  water.  The  little  boats  would  probably  draw 
live  or  six  inches;  they  were  not  built  very  wide. 

These  boats  that  would  navigate  on  the  twelve  inches  of 
v/ater  and  carry  freight  are  about  100  feet  long,  90  to  100  feet 
long  and  about  10  to  18  feet  wide,  with  a little  flat  bottom 
an(l  square  bow. 

The  Court:  Q.  Steamboats? 

A.  Yes,  sir;  that  is  for  low  water. 

The  Ohio  river  at  that  point  has  sustained  some  improve- 
ment. They  have  put  in  dikes  and  dams,  helped  the  channel 
considerable.  I ran  over  it  there  before  the  improvements 
were  made.  Since  then  they  do  not  have  it  that  low. 

The  12-inch  water  was  before  the  improvements  had  been 
made.  If  those  improvements  had  not  been  made,  that  low 
water  would  have  occurred  more  frequently  every  year. 
(Abst.,  p.  664). 

Witness  Lyman  E.  Cooley,  testified  (Abst.,  p.  799)  : 

I have  been  up  the  whole  length  of  the  Ohio  Eiver,  and 
up  that  river  in  the  fall  of  1883  for  the  purposes  of  letting 
contracts  for  $500,000  worth  of  watercraft,  which  I had  de- 
signed written  specifications  for,  and  stopped  at  all  the  points 
along  the  Ohio  Eiver  where  there  were  boat  yards.  The  Ohio 
Elver  at  that  time  was  not  at  an  extereme  low  stage,  but  I 
remember  of  going  from  Cincinnati  to  Gallipolis,  Ohio,  on  the 
boat  with  a large  complement  of  passengers,  and  one  or  two 
hundred  tons  of  freight,  when  there  was  less  than  30  inches 
of  water  on  the  bars.  The  Ohio  Eiver  does  get  extremely 
low.  I have  made  a particular  examination  of  it  at  Louisville 
for  water-power  purposes,  where  the  flow  of  water  was  not 
over  seven  to  eight  thousand  cubic  feet  of  water  per  second. 
I do  not  know  that  I could  state  the  breadth  at  low  water 
at  that  particular  point,  except  as  I remember  it  from  the 
maps.  It  is  very  much  spread  out  in  approaching  the  falls 
of  the  Ohio,  and  the  rapids.  Those  are  located  just  above 
Louisville,  just  opposite  and  below  Jeffersonville,  Indiana,  and 
New  Albany,  Indiana,  on  the  opposite  side.  Below  Pittsburg 
the  river  has  reached  as  low  a stage  as  1,500  feet  of  water 
23er  second,  and  at  times  only  a few  inches  of  water,  eight 
to  ten  inches  of  water  on  the  ripples;  that  is,  in  depth;  and 
the  Pittsburg  coal  fleet  has  been  locked  uj)  for  as  much  as 
five  months  waiting  for  a boating  rise,  as  they  call  it,  in  order 
to  pass  down  the  Ohio  Eiver,  and  over  a million  tons  of  coal 
has  laid  in  the  Pittsburg  harbor  waiting  an  opportunity  to 
23ass  out  when  the  water  should  be  in  the  stream  sufficient  to 
float  the  coal  fleet.  (Abst.,  p.  799.) 

In  the  census  of  1890,  when  I had  occasion  to  make  some 
comparisons  of  that  kind  in  regard  to  the  traffic  on  western 


r)(\] 

rivors,  (li(‘  (‘oiiimerc'o  of  tlio  Ohio  llivor  and  its  lj‘i})utai‘i(iS 
ainoiinl(‘(l  to  (ivo  })or  oont.  in  ton  inilos  of  that  eai'riod  })y  all 
Iho  railroads  in  tho  UnitcMl  States  (Ahst.,  p.  791)-H()()). 

The  smaller  eraft  tliat  1 eneonntered  on  the  Ohio  River 
were  nnieh  like  tliese  smaller  eraft  of  the  Missouri  jiiver,  28 
to  32  feet  wide,  125  to  160  feet  in  length,  running  light  on 
about  a foot  of  water  and  loading  up  to  two  and  a half  feet. 
When  the  extreme  low  water  periods  arrive,  the  big  boats  in 
many  eases  go  out  of  eommission,  the  larger  boats  used  on 
the  tributaries  go  into  the  main  river,  and  the  little  boats  on 
the  smaller  tributaries  come  into  the  Ohio  and  into  the  Mis- 
souri and  into  the  Arkansas. 

AVhen  the  low  water  arrives  the  little  boats  eome  out  of 
the  small  streams  and  carry  on  the  business  on  the  big  streams 
(Abst.,  p.  800).  There  are  many  of  these  smaller  streams  that 
only  have  navigation  in  them  for  a few  months,  three  or  four 
months,  like  the  head  waters  of  the  Tennessee,  where  there 
are  five  tributaries  that  have  in  low  water  only  a few  inches 
in  depth  on  the  bars,  and  yet  for  four  or  five  months  or  three 
months  have  a good  stage  of  water. 

Report  of  Captain  Marshall,  Ex.  Doc.,  264  (51st  Cong.,  1st 
Session),  under  date  of  March  10,  1890: 

‘C\ll  these  l)oats  are  built  for  s|)ecial  routes;  navigating 
the  Mississippi  and  Ohio  Rivers  below  St.  Louis  and  Cin- 
cinnati at  good  navigable  stages  of  water.  At  low  stages  all 
of  the  Ohio  River  boats  and  a large  part  of  the  others  are 
withdrawn  and  replaced  with  lighter-draft  l)oats.  Those  that 
remain  go  dragging  along  over  sand-bars,  at  least  above 
(kiiro,  with  half  or  no  'oads.” 

Ohio  Tributaries. 

The  Green  River  is  navigated  for  200  miles  and  has  6 locks 
and  dams  with  a total  lift  of  83  feet.  It  is  120  feet  wide  and  4 
feet  dee])  in  low  water.  (Bewley,  ^Vbst.,  ]).  1017.)  It  was  not  navi- 
gable before  the  locks  and  dams  were  ])ut  in,  and  then  only  for  2 or 
3 months  in  the  year. 

The  Nolin  is  a branch  of  the  (Ireen : The  Green  River  dam  raises 
the  water  in  it  so  it  is  6 feet  dee]).  We  navigate  it  14  miles  up. 
(/d.,  Abst.,  ]).  1018.) 

The  Barren  is  100  feet  wide  and  has  a dam  15  feet  high  that 
gives  41  feet.  We  have  to  s])ar  over  sand  bars.  {Id.,  Abst.,  p. 
1018.) 


5(12 


'rii(‘  Kculuckf!  I lia\x‘  navigated  210  miles,  it  lias  locks 
and  dams.  1die  water  is  liacked  up  from  one  dam  all  the  way 
to  the  next  one.  It  was  navigalile  in  a way  before  the  improve- 
ment was  put  in. — 1 don’t  know. — I know  that  they  broke  out  in 
.187(1,  and  after  that  they  were  navigable  with  a small  boat  per- 
haps ()  months  in  the  year.  Then  the  water  got  down  so  the  small 
l)oat  had  to  quit.  There  was  not  over  18  inches.  That  boat  would 
not  carry  over  lO  tons.  She  towed  her  freight  on  a barge — 56 
tons.  A good  ])art  of  the  year  the  water  overflows  the  dams. 
With  a boat  drawing  4 feet  and  5 feet  of  water  on  the  dams,  we 
go  over  the  dams  going  down  stream.  It  is  no  risk  to  go  over 
on  a dro])  of  a foot  in  400.  I would  not  say  I have  not  gone  over 
on  a dro])  of  2 feet  in  400.  (Pryor,  Abst.,  p.  1025.) 

The  Kanawha. 

Prior  to  the  improvement  by  the  United  States  the  low  water 
depth  of  the  Kanawha  went  below  15  inches  every  year.  We  used 
small  light-draft  boats  on  the  Kanawha.  I have  seen  it  as  low 
as  10  to  12  inches.  We  could  navigate  and  carry  light  freight  on 
12  inches.  (Bing,  Abst.,  p.  664.) 

At  Charleston,  W.  Virginia,  it  got  as  low  as  10  inches  in  the  river. 
AVe  made  two  trips  a week  on  the  Kanawha,  for  about  3 months 
a year.  It  would  vary  from  10  inches  to  3 feet.  AVe  brought  down 
barges  loaded  with  coal  and  shoved  the  empties  back  up.  The}" 
drew  empty  6 to  10  inches.  In  high  water  we  would  load  them 
down  to  6 feet,  150  tons:  — On  three  feet  the  same  boat  would 
carry  100  tons.  It  had  a great  many  chutes  there,  strong  cur- 
rents with  walls  built  up  and  the  channel  close  to  the  walls,  with 
a current  of  8 to  10  miles  that  we  navigated.  We  had  to  warp 
up  and  cordelle  over  these  chutes  with  a boat  half  loaded.  (Bing, 
Abst.,  ) 

Surveyor  General  Hutchins  said  of  the  Kanawha  in  1778: 

‘^Big  Kanhaway  falls  into  the  Ohio  upon  its  southeastern 
side,  and  is  so  considerable  a l)ranch  of  this  river,  that  it  may 
l)e  mistaken  for  the  Ohio  itself  by  persons  ascending  it.  It  is 
slow  for  ten  miles,  to  little  broken  hills;  the  low  land  is  very 
rich,  and  about  the  same  breadth  (from  the  Pipe  hills  to  the 
falls)  as  upon  the  Ohio.  After  going  ten  miles  uj)  Kanhaway 
the  land  is  hilly,  and  the  water  a little  rapid  for  50  or  60  miles 


rurtlicM’  lo  llio  falls,  yet  l)atteaux  oj*  l)arges  iriay  he  easily 
rowed  tliillier.  These  falls  wer(‘  foraierly  thought  iinpass- 
ahle;  l)ut  late  diseoveries  have  ])roved,  that  a wagon-road 
]nay  he  made  through  the  momitaiii  which  occasions  the  falls, 
ami  they  hy  a portage  of  a few  miles  only,  a communication 
may  he  had  between  the  waters  of  great  Kanhaway  and  Ohio, 
and  those  of  flames  ]\iver  in  Virginia.” 

I inlay’s  America,  p.  494. 

The  Cumberland. 

Harbor  shoals  in  the  Cumberland  have  a fall  of  over  8 feet  in 
a mile.  In  low  water  they  have  to  warp  over  it,  but  the  Govern- 
ment has  put  in  a lock  and  dam.  (McCullough,  defendant’s  wit- 
ness, xVhst.,  p.  1177.) 

” We  have  no  locks  and  dams  in  those  rivers,  not  in  the  Cum- 
herland'  and  Tennessee.”  (Mason,  another  of  defendant’s  wit- 
nesses, Ahst.,  ]).  1220.)  ”They  built  wing  rams,  but  not  regular 
dams  across  the  river.”  Id.,  defendant’s  witness  Mason,  was 
egregicusly  mistaken  in  this  as  the  next  authority  shows. 

From  the  Report  of  Chief  of  Engineers,  1891,  Part  V,  Appen- 
dix WAV,  page  3215: 

”The  (hnnherland  River  from  Nashville  to  the  Ohio  is  298 
miles  long,  and  has  a total  fall  of  122.3  feet,  an  average  fall 
of  5 inches  ])er  mile. 

“Colonel  Barlow’s  project  for  the  improvement  of  this 
stretch  of  river  consists  in  building  7 locks  and  dams  and 
some  channel  improvements,  at  an  estimated  cost  of  about 
$2,000,000. 

“Colonel  Barlow,  in  his  report,  after  mentioning  some  of 
the  rapids  and  shoals  on  the  river,  says: 

“ H^lfl'orts  have  hitherto  been  made  to  reduce  the  fall  over 
these  shoals  and  thus  lengthen  the  season  of  navigation  by 
the  usual  method  of  wing  dams  and  channel  excavation.  This 
class  of  work  has  been  carried  as  far  as  seems  expedient  to 
continue  it,  and  the  results,  although  A^al liable,  do  not  satisfy 
the  interests  of  navigation;  a more  radical  improvement,  in 
keeping  with  that  in  progress  on  the  river  above  Nashville, 
being  demanded.’  ” (Abst.,  p.  1214.) 

Reports  of  elaborate  improvements  of  the  Cumberland  and  its 
tributaries  and  of  private  dams  in  the  Cumberland  will  be  found 
in  the  report  of  Colonel  Barlow,  U.  S.  Engineer’s  Reports,  1887, 
Volume  nr  (the  same  volume  which  contains  the  re])orts  of  Major 


J Iaii(l))iiry  and  ol*  the  Comstock  Board  on  the  Des  Plaines  and 
Illinois  KMvers),  ])j).  1708-1779,  and  also  of  the  Ohio,  Allegheny, 
Kanawha,  Big  Sandy,  Wabash  and  Kentucky  liivers  in  the  same 
volume,  ])}).  1781-189-1-,  disclosing  a multitude  of  conditions  sur- 
])assing  anything  on  the  Des  Plaines, — among  others,  a current 
of  1M.0  miles  an  hour  in  tlie  Kentucky  at  the  Beattyville  Danl 
(p.  1873),  and  the  report  has  a standard  of  comparison  of  slopes 
of  1 foot  in  100  (52.8  to  the  mile),  in  the  Susquehanna  (p.  1883), 
and  the  statement  that  the  upper  Kentucky  ^Os  only  navigable 
for  coal  l)oats  and  rafts  about  6 months  of  the  year.”  (p.  1884.) 

Tennessee  Rivee. 

]\rr.  AIason,  the  witness  for  the  defense,  said  of  the  Tennessee: 

‘‘There  are  no  locks  and  dams  on  the  Tennessee  River  or 
the  Cumberland  River.  They  built  wing  dams,  but  not  regular 
dams  across  the  river.  The  Tennessee  River  and  the  Cum- 
])erland  River  are  both  badly  hampered  by  bridges.  They 
built  wing  dams  to  steer  the  water  into  a certain  channel  and 
narrow  the  stream  and  make  it  deeper.”  (Abst.,  p.  1220.) 

Mr.  Cooley  said : 

“There  are  many  of  the  smaller  streams  that  only  have 
navigation  in  them  for  a few  months,  three  or  four  months, 
like  the  head  waters  of  the  Tennessee  where  there  are  five 
tributaries  that  have  in  low  water  only  a few  inches  in  depth 
on  the  bars,  and  yet  for  four  or  five  mouths  or  three  months 
have  a good  stage  of  water.  The  Government  has  spent  con- 
siderable money  in  improving  these  little  streams,  so  as  to 
])roduce  fifteen  to  eighteen  inches  of  water  continuously  over 
the  ripples,  in  the  interest  of  tow-boating  and  flat  boating  by 
the  people,  the  riparian  owners.  The  capacity  in  a state  of 
nature,  of  a small  stream  which  they  improved  to  a continuous 
depth  of  fifteen  inches,  would  be  not  over  five  or  six  inches 
upon  the  bars  upon  several  of  those  minor  streams,  like  the 
Hiawasse,  the  Little  Tennessee,  the  Holstern,  the  Clinch  and 
French  Broad,  and  all  streams  of  that  class  in  East  Tennes- 
see. Thev  are  used  for  carrving  on  a profitable  commerce.” 
(Abst.,  p.‘800.) 


John  McCaffeey: 

I have  run  a boat  from  Paducah  to  Florence,  Alabama,  on 
the  Tennesssee;  have  made  trips  on  other  boats  from  Flor- 
ence up  to  Chattanooga,  Tennessee.  The  Muscle  Shoals  com- 
mence somewhere  close  to  Florence — a little  above  it, — have 


been  up  in  around  the  Muscle  Shoals  in  a,  })oal.  \ liave  been 
u[)  Ibe  (biuiberlaiid  River  three  or  tour  or  five  times  on  a 
boat  100  to  150  miles  that  the  boat  is  run  uf)  there.  (Al)st., 
]).  1157.)  The  boat  was  155  Feet  lon^’.  (Abst.,  ]).  1157.)  ''the  low- 
est water  we  ever  run  on  on  the  Tennessee  was  41  Feet.  (Abst., 
p.  1100.)  I never  knew  oF  them  navigating  on  a stream  that  bad 
a slope  as  high  as  0 or  7 feet  to  the  mile  on  any  kind  of  a 
stream.  (A1)st.,  ]).  1100.)  Take  the  Muscle  Shoals  there  on  the 
Tennessee  and  I think  there  is  nine  miles  there  that  lias  got 
80  feet  fall.  That  would  be  in  round  numbers  9 feet  to  the 
mile  and  they  have  a canal  around  that.  They  don’t  navi- 
gate the  river  there  at  all.  (Abst.,  p.  1160.) 

Joseph  E.  McCullough.  (Abst.,  p.  1176.) 

I have  been  up  the  Tennesese  pretty  near  to  the  head  of  it, 
but  not  as  a navigator.  The  Government  is  improving  the  bad 
places  in  that  river,  in  fact  wherever  I know  of  a bad  place 
hy  shoals  or  rapids  in  any^of  the  rivers  that  I have  operated 
on  or  passed  over  the  Government  is  improving  them. 

Tennessee  River — Muscle  Shoals. 

U.  S.  Engineer's  Report  for  1872. 

(Pages  495,  497,  512-514.) 

‘‘Resurvey  of  the  Tennessee  River  from  Brown’s  Ferry, 
Alabama,  to  Florence,  Alabama,  (Act  of  Congress  approved 
February,  1871.) 

Tlfat  portion  of  the  Tennessee  River  covered  by  this  survey 
is  commonly  known  as  the  Muscle  Shoals,  although  three  dis- 
tinct series  of' shoals,  separated  by  deep  water,  are  included 
within  its  limits,  viz: 

Elk  River  Shoals,  beginning  two  and  one-half  miles  below 
Brown’s  Ferry,  and  extending  to  the  mouth  of  the  Elk  River, 
eight  miles  and  one-half,  with  a fall  of  21  feet. 

Jjig  Muscle  Shoals,  beginning  six  miles  and  one-quarter  be- 
low Elk  River,  and  extending  to  Bainbridge  (formerly  known 
as  Campbell’s)  Ferry,  fourteen  miles  and  one-half,  with  a 
fall  of  82  feet.  It  is  around  this  shoal  that  a canal  was  con- 
structed in  1832- ’57. 

Little  Muscle  Shoals,  beginning  one  mile  and  one-quarter 
below  the  foot  of  Big  Muscle  Shoals,  and  extending  to  Flor- 
ence, Alabama,  five  miles  aud  one-third,  with  a fall  of  22  feet. 

Between  the  foot  of  Elk  River  Shoals  and  the  head  of  Big 
Muscle  Shoals  lies  the  deep  water  of  Lamb’s  Ferry  pool  or 
eddy,  six  miles  and  one-quarter  in  length,  with  a fall  of  5.4 
feet  and  a depth  varying  from  8 feet  to  an  unknown  amount 


over  12  I’eet,  and  with  one  roeky  l)ar  about  one  mile  and  three- 
(|narters  below  the  nioiitli  of  Elk  Kiver. 

At  tlie  foot  of  Big-  Alnscle  Shoals,  and  l)etween  tliat  and  the 
li(‘ad  of  Little  Muscle  Shoals,  lies  the  deep  water  of  Bain- 
bridge,  or  (kimpbeH’s  Ferry  ])ool  or  eddy,  one  mile  and  one- 
(jiiarter  in  length,  with  a fall  of  two  feet,  and  a depth  vary- 
ing from  8 to  57  feet. 

The  whole  distance  and  fall,  then  from  Brown’s  Ferry  to 
Florence,  is  as  follows,  viz: 

Distance.  Fall. 

Miles.  Feet. 


From  Brown’s  Ferry  to  head  of  Elk  River 

Shoals  (deep)  2.6  1.7 

Elk  River  Shoals 8.6  21.1 

Lamb’s  Ferrv  pool  (deep) 6.3  5.4 

Big  Muscle  Shoals 14.4  82.1 

Fampbell’s,  or  Bainbridge,  Ferry  pool,  (deep)  1.25  1.9 

Little  Muscle  Shoals 5.35  22.0 


Total  38.5  134.2 


The  object  of  the  survey  was  to  ascertain  what  means  could 
be  found  for  passsing  these  obstructions  and  uniting  the  two 
dissevered  branches  of  the  Tennessee,  which  for  two  hundred 
and  sixty  miles  below  and  two  hundred  miles  above  is  navi- 
gable for  the  largest  class  of  western  river  steamers,  while 
smaller  steamers  are  able  lo  pass  two  hundred  mdes  still 
further  up  the  stream.  * * * 

As  stated  in  the  earlier  pages  of  this  report,  the  Tennessee 
is  navigable  from  Florence,  Alabama,  to  Paducah,  Kentucky, 
at  its  mouth,  two  hundred  and  sixty  miles  distant,  by  the 
largest  class  of  western  river  steamers  (the  obstacles  at  Col- 
bert Shoals  being  nearly  removed),  while  the  same  may  be 
said  of  that  portion  of  the  river  lying  between  Muscle  Shoals 
and  Chattanooga,  two  hundred  miles  in  length.  During  the 
high-water  season  the  river  rises  at  Chattanooga  40  feet;  at 
Brown’s  Ferry,  12  feet;  on  the  Big  Muscle  Shoals,  from  4 
lo  5 feet;  and  about  twice  as  much  on  Little  Muscle 
Shoals;  at  Florence,  20  feet;  and  at  Waterlook,  twenty- 
eight  miles  l)elow  Florence,  30  feet.  This  rise  enables 
large  vessels  to  pass  up  to  Knoxville,  two  hundred  miles  above 
Chattanooga,  and  renders  the  Little  Tennessee,  the  Holston, 
and  the  French  Broad  navigable  for  smaller  steamers  for 
some  distance  farther.  * * * 

Tennessee  Division. — From  Paducah,  Kentucky,  at  the 
mouth  of  the  Tennessee,  up  that  river  to  Florence,  Alabama, 
at  the  foot  of  Muscle  Shoals ; distance,  two  hundred  and  hfty- 
five  miles,  Coast  Survey  ineasurement. 


5G7 


I'lio  greater  poiiioii  ()[‘  this  division  fiirriislies  depth  enongli 
for  the  passage  ot*  any  boat  that  floats  on  tlie  western  waters, 
hilt  scattered  along  tlie  line  are  numerous  reefs  and  bars  on 
which,  during  the  season  of  lowest  water,  less  than  3 feet 
water  is  to  he  had,  while  tlie  channel-ways  of  many  others, 
though  sufficiently  deep  at  low  water,  are  so  crooked  and  nar- 
row that  it  would  be  impossible  for  tows  to  pass  them,  and, 
therefore,  need  to  he  improved  before  they  can  he  used  for  the 
purpose  now  under  discussion. 

The  most  serious  of  these  obstructions  is  the  group  of  reefs 
and  bars  known  as  Colbert  Shoals,  about  seventeen  miles  be- 
low Florence,  Alabama,  which,  next  to  the  Muscle  Shoals,  con- 
stitute the  most  serious  object  to  be  met  with  on  the  whole 
line  of  the  river. 

In  the  saine  vicinity  are  the  obstructions  at  Seven  Mile 
Island  and  Buck  Island,  a few  miles  above  Colbert  Shoals, 
and  those  at  Bee  Tree  Island,  a few  miles  below  Colbert 
Shoals. 

The  water  at  these  obstructions,  during  the  lowest  stage  of 
the  river,  is  from  12  to  20  inches  in  depth,  and  all  commu- 
nication by  boat,  between  Florence  and  the  lower  river,  is 
cut  off,  steamers  being  unable  to  ascend  beyond  Eastport  and 
AVaterloo,  about  thirty  miles  below  Florence.  Attempts  have 
been  made,  within  the  past  four  years,  under  congressional 
appropriations,  to  improve  the  river  at  these  points  so  that 
3 feet  water  might  be  carried  over  them  at  the  lowest  stage. 
To  secure  5 feet  depth  of  water  over  this  olistacle  during 
the  remainder  of  the  year  may  require  the  construction  of  a 
short  section  of  canal  with  a lock,  the  cost  of  which  cannot 
be  determined  without  a minute  survey,  but  which  may  be 
set  down  at  not  less  than  $300,000. 

Descending  the  river,  we  find  that  improvements  of  some 
kind  or  other — removing  rock  or  gravel,  or  constructing 
wing-dams,  in  order  to  straighten  or  widen  the  channels,  or 
to  give  them  sufficient  depth — will  be  required  at  the  follow- 
ing ))oints,  viz:  Bear  Creek  Shoals,  Indian  Creek,  Big  Bend 
Shoals,  Diamond  Island,  AYolf  Island,  Chalk  Bluff,  Beech 
Creek  Shoals,  Buffalo  Shoals,  Armstrong’s  Tow-head  Bridge, 
at  Johnsonville,  Duck  Elver  Shoals  and  Suck,  Turkey  Island 
Shoals,  AVhite  Oak  Island,  ITarrican  Island,  Leatherwood 
Shoals,  Sandy  Island,  Panther  Creek  Island,  McCullough’s 
Bar,  Blood  Rivei*  Island,  Pentecost  Tow-head,  Widow  Rey- 
nold’s Bar,  Grubb’s  Tow-head,  Little  Chain,  and  Grand 
Chain. 

At  most  of  these  points  but  a small  amount  of  work  would 
be  required  to  make  the  low-water  channel  sufficiently  broad 
and  deep.  As  an  accurate  estimate  cannot  be  given  without 
an  accurate  survey,  I have  roughtly  fixed  the  probable  aver- 


a^(‘  cost  ol*  ijiipi-oving-  these  j>oiiits  at  $3,000  eaeli,  except  Big 
l>en(l  SJioals,  wJiicli,  })eiiig  over  three  miles  in  length,  will 
cost  a large  amount.  This  and  Duck  JBver  Shoals  are  the 
two  most  troublesome  points  l^elow  Colbert  Shoals.  During 
the  greater  portion  of  the  year  3 feet  water  may  be  carried 
over  either,  but  during  the  low-water  season  they  have  been 
known  to  have  as  little  as  22  inches  over  them,  though  it  sel- 
dom falls  below  30  inches.  The  entire  cost  of  securing  3 feet 
de])th  over  the  whole  distance  during  the  low-water  season, 
and  5 feet  depth  during  the  ordinary  stage  of  water,  may  be 
set  down  as  not  less  than^  $500,000. 

Most  of  these  obstructions  are  not  such  as  to  materially 
interfere  with  the  passage  of  the  small  steamers  now  em- 
])loyed  on  the  Tennessee,  but  they  would  become  serious  ob- 
stacles to  tows,  which,  in  the  event  of  the  opening  of  this  route, 
would  constantly  pass  up  and  down  the  river;  for,  to  admit 
of  the  passage  and  easy  management  of  a steamer,  with  a 
barge  on  each  side  of  her,  the  channel-ways  would  all  have 
to  be  straightened  and  widened  to  not  less  than  150  feet. 

^luscie  Shoals  Bivisiov. — Extending  from  Florence,  Ala- 
bama, up  the  Tennessee,  passing  Little  Muscle  Shoals,  Big 
Muscle  Shoals,  and  Elk  Elver  Shoals,  to  Brown’s  Ferry,  Ala- 
bama, a distance  of  thirty-eight  miles  by  survey,  which  would 
have  to  be  passed  entirely  by  canal ; and,  for  reasons  stated 
in  an  earlier  part  of  this  report  this  canal  should  be  con- 
structed for  the  passage  not  only  of  such  boats  as  may  be  de- 
signed to  pass  over  the  remaining  portions  of  the  route,  but 
also  for  the  largest  steamers  ever  likely  to  be  employed  in  the 

Tennessee  Elver  trade. 

* 

The  dimensions  proposed  for  this  canal  were  as  follows, 
viz:- — 100  feet  wide  at  wmter-surface  and  6 feet  deep;  lock- 
chambers,  60  feet  wide  by  300  feet  between  miter-sills ; and  its 
estimated  cost  was  $3,676,000. 

Alabama  Division . — Extending  from  Brown’s  Ferry,  at  the 
head  of  Muscle  Shoals,  up  the  Tennessee  to  the  mouth  of 
Short  Creek,  two  miles  and  a half  above  Guntersville,  Ala- 
bama, distance  seventy-five  miles  by  steamboat  measure- 
ment. 

This  portion  of  the  river  is  broad,  straight,  and  almost 
free  from  obstructions,  with  abundant  water  except  at  Gun- 
ter’s Bar,  Gunter’s  Eeef,  Flint  Eiver,  Tow-head,  Whites- 
burgh-Shoals  and  Eeefs,  and  Limestone  Shoals,  where,  during 
the  lowest  stage  of  the  river,  the  depth  of  water  varies  from 
10  to  20  inches.”  (Abst.,  pp.  1626-7-8-9-30.) 


John  M.  S\vi':kni:v^ 

Ho  (it  Iriiil-^e.r. 

1 mu  inUu-osted  iii  the  Outing  Boat  (yoinjiany  of  (Jiica^»(), 
Avho  build  motor  l)oats;  in  the  .Howard  Shi])  J>uildiug  (.\)m- 
paiiy  at  Jeffersonville,  Judiaua,  and  in  some  allied  proper- 
erties  with  that  coucerh  of  repair  plants  on  the  Ohio  Jliver. 
I liave  been  building  river  boats  particularly  since  187b  or 
1878  in  my  own — The  steamboats  have  been  used  generally 
on  the  western  rivers  of  the  United  States,  some  in  Soutli 
America,  some  in  Mexican  Rivers,  but  generally  on  the  west- 
ern waters,  the  waters  that  flow  into  the  Gulf  of  Mexico,  as 
they  are  classified.  I have  built  several  boats  that  have  gone 
into  the  St.  Johns  River  in  Florida,  and  some  on  the  Chat- 
tahooche  River.  (Abst.,  p.  320.)  I never  have  built  any  boats 
for  the  Chattahooche  River  that  were  smaller  than  150  feet  by 
about  26  or  28  feet  wide.  Those  boats  would  draw  without 
any  load  in  them  about  20  to  22  inches;  not  evenly  all  over, 
because  a boat  of  that  type  is  usually — if  she  is  drawing  22 
inches  at  her  stern  she  would  draw  probably  18  inches  for- 
ward. A boat  of  that  kind  carrying  cotton  down  the  Chat- 
tahooche River  wmuld  be  loaded  deep  in  the  vessel  so  that 
the  bow'wms  very  much  deeper,  would  be  loaded  to  about  five 
feet.  A boat  of  that  character  would  carrv  150  tons.  (Abst., 
p.  322.) 

Defendant's  Witnesses  Concerning  the  Ohio,  its  Tribu- 
taries AND  Falt.s. 

Flmore  AV.  Bewley  (iVbst.,  ]).  1015)  : 

Steamlioat  man,  fi-oni  Bowling  Green,  Kentucky;  58  years 
old;  been  steamboating  -h)  years  on  the  Ohio,  Green,  Barren, 
Rough,  Nolin  and  Cumbei'land  Rivers.  1 navigated  the  Ohio 
with  stern-wheel  steamboats  ])rincipally  for  about  eight  years, 
the  Ohio  alone  about  four  years,  and  the  Green  four  years 
with  it,  the  Green  alone  36  years;  tri|)s  about  200  miles.  We 
navigated  the  Barren  between  Fvansville  and  Bowling 
Green;  steamboated  up  the  Rough  River  30  miles  for  about 
eight  months,  (Abst.,  p.  1015)  and  on  the  Nolin  River  about  six 
months  for  about  fourteen  miles,  and  on  the  Cumberland  for 
about  six  months  for  200  miles  up.  T was  interested  in  six 
boats  on  those  rivers.  (Abst.,  p.  1015.) 

Q.  Captain,  what  is  the  record  of  the  Ohio  River  as  to  its 
navigable  stage  of  water? 

A.  As  a navigable  stage  in  extremely  low  water,  w^e  navi- 
gated there  on  as  little  as  24  inches.  Not  without  a great  deal 
of  trouble,  however. 

Q.  How  frequently  does  that  occur? 


^V.  AVell,  it  has  not  occurred  in  the  last  four  years.  Up 
to  four  years  ag“o,  it  was  most  every  year,  that  is,  in  the  fall  of 
the  year  in  extremely  low  water. 

(^).  JIow  long  would  that  continue! 

A.  Well,  from  two  or  three  months. 

(^).  That  was  in  the  fall! 

A.  in  the  fall. 

(^).  And  at  what  points  did  you  find  that  depth! 

A.  W^ell,  we  would  find  that  at  difl'erent__sand  bars,  not  the 
same  de])th  at  all  the  bars.  Only  at  sand  bars  would  we  find 
the  shoal  water.  (Abst.,  ]).  1015-1016.) 

The  Green  liiver  is  navigated  for  230  miles.  Our  regular 
trip  was  200  miles  long,  170  of  it  on  the  Green,  9 miles  on  the 
Ohio.  (Abst.,  p.  1017.)  The  Green  is  120  feet  wide  at  the  head 
of  navigation  and  4 feet  deep  in  low  water.  The  river  is 
locked  and  dammed.  The  Green  Eiver  itself  from  where  we 
enter  it  at  Mammoth  Cave  landing  is  122  miles,  and  there  are 
six  locks  and  dams  in  that  district.  The  first  is  60  miles  up, 
the  next  two  45  each,  the  next  20,  the  next  13,  the  next  17. 
(Abst.,  p.  1017.)  The  first  dam  is  14  feet  high,  the  second  about 
the  same,  the  third  17  feet,  the  fourth  14,  the  fifth  13,  the  sixth 
11  feet  liigh;  total,  83  feet  of  raise  in  the  water.  1 never 
navigated  the  river  before  the  locks  and  dams  were  put  in. 
(Abst.,  p.  1017.)  1 do  not  know  how  much  added  depth  is  ob 
tained  by  the  locks  and  dams. 

The  navigable  reach  of  the  Barren  is  30  miles.  1 do  not 
know  how  deep  the  water  is  above  the  slack  water  from  the 
dams  in  the  Barren  or  the  Green.  The  current  is  greatly 
reduced  by  the  dams.  (Abst.,  p.  1018.)  There  is  one  dam  in 
the  Barren  15  iniles  from  its  mouth.  The  Barren  is  about 
100  feet  wide.  In  the  slack  water  of  the  dam  it  is  44  to  5 
feet  deep.  (Abst.,  p.  1018.)  The  dam  has  a height  of  15  feet. 
Our  boat  in  the  Barren  is  120  feet  long,  25  to  30  feet  wide, 
carries  200  tons. 

The  Nolin  is  a branch  of  the  Green,  below  Mammoth  Cave. 
We  navigated  it  14  miles  up.  The  dam  below  it  in  the  Green 
.Kiver  raises  the  water  in  the  Nolin.  It  is  from  75  to  90  feet 
"^ide.  (Abst.,  p.  1018.)  It  holds  a depth  of  6 feet  above  the 
dam.  The  miter  sills  of  the  locks  are  designed  to  carry  44 
to  5 feet. 

The  Kough  Eiver  has  a stretch  of  navigation  30  miles  long; 
it  is  about  90  feet  wide.  We  have  a lock  and  dam  in  that  river 
eight  miles  up.  It  was  not  navigable  except  in  high  water 
before  the  dams  were  put  in.  The  Green  was  not  navigable 
except  in  high  water  before  the  dams  were  put  in.  (Abst., 
p.  1019.)  The  high  water  period  on  these  rivers  lasts  from  two 
to  three  months  in  the  year,  and  then  they  are  navigable. 

I never  cordelled  a boat  through  anywhere  myself.  I have 


571 


spanvd  over  a sand  bar.  We  run  down  to  llie  sarid  bar,  set  the 
spar  over  on  tlie  side  of  tlie  })oat,  put  our  line  on  the  eapstan 
with  a pair  of  blocks,  and  the  sjiars  cant  her  down.  (Abst., 
p.  1019.) 

1 navigated  the  Cumberland  from  its  moutli  200  miles  up 
to  Nashville  with'  a boat  160  feet  long,  30  to  32  feet  beam, 
and  she  would  carry  350  tons  possibly.  That  was  before  the 
improvement  was  nuide  of  the  liarbor  shoals.  (Abst.,  j).  1019.) 
AVe  made  one  trip  on  that  water  in  1904.  At  Nashville  we 
met  boats  that  navigated  from  above;  they  were  about  tlie 
same  size  and  tonnage.  (Abst.,  p.  1020.)  AVe  didn’t  carry 
freight  over  the  shoals;  we  used  lighters  over  the  shoals.  A 
lighter  is  a barge  that  the  steamboat  has  in  tow,  and  when 
we  got  to  the  shallow  places  where  there  is  not  enough  water 
for  the  boat  to  go  over  with  the  freight  we  move  it  from  the 
steamboat  onto  the  barge,  as  much  as  is  necessary  to  let  the 
boat  over  and  take  the  freight  over  on  the  barges  and  the 
steamboat  over  light  and  then  reload  it.  (Abst.,  p.  1020.) 

My  principal  navigation  was  on  the  Green  River  in  slack 
water.  I have  navigated  the  Ohio  between  Evansville,  In- 
diana, and  Cairo,  Illinois.  I navigated  the  Ohio  down  to  two 
feet  of  water  at  times  in  low  water.  I was  there  about  four 
years  ago  in  extreme  low  water.  That  has  not  occurred  dur- 
ing the  last  four  years,  but  prior  to  that  it  occurred  nearly 
every  year.  On  the  2-foot  stage  they  use  the  small  boats,  low 
water  boats  from  150  to  160  feet  long,  breadth  30  feet.  On  2 
feet  of  water  they  would  not  carry  over  75  tons.  (Abst., 
p.  1020.)  There  has  been  considerable  work  done  by  the  gen- 
eral Government  in  the  way  of  taking  out  these  bars  and 
building  dams  to  get  slack  navigation  on  tlie  Ohio.  (Abst., 
p.  1020.)  Alost  of  my  navigation  has  been  on  slack  water  and 
that  is  an  easy  way  of  navigating  with  the  least  possible 
difficulty.  (Abst.,  p.  1022.) 

Capt.  Nathan  th  Pryor  (Abst.,  p.  1022)  : 

Home,  Carrollton,  Kentucky;  age  forty-two;  steamboat 
pilot  thirteen  years;  master  eleven  years;  in  steamboat  busi- 
ness 28  years.  Navigated  the  Kentucky  and  Ohio;  used  all 
kinds  of  boats,  propellers,  stern-wheel,  side-wheel,  and  gaso- 
line lioats,  from  30  feet  to  300.  (Abst.,  pp.  1022-1023.)  The 
gasoline  lioats  I have  used  were  70  feet  long,  18  feet  wide,  and 
were  freight  carriers.  I liave  navigated  them  between  Aladison, 
Indiana,  and  Monterey,  Kentucky,  12  miles  on  the  Ohio  River 
and  40  on  the  Kentucky  River.  (Abst.,  p.  1023.)  The  Goverm 
ment  has  improved  the  Kentucky  River.  I have  navigated 
it  271  miles — that  is  a mistake,  it  was  210  miles.  (Abst., 
p.  102A)  It  has  11  locks  and  dams.  The  water  is  backed  up 
from  one  dam  all  the  way  to  the  next  one.  It  was  navigable 
in  a way  before  the  improvement  was  made.  As  far  back  as 


1 can  j-eineinher  when  1 ili-st  started  at  tlie  age  of  about  14 
y(‘ars,  the  Jocks  and  dams  were  broken  out.  They  were  orig- 
inally built  by  the  state,  and  the  Government  took  charge  of 
the  river  in  1880,  repaired  these  old  dams,  and  built  some  new 
locks  and  dams,  and  when  1 first  started  to  work  on  the  river 
at  14  years  of  age,  we  went  through  the  breaks  in  these  dams, 
and  in  the  summer  when  the  river  would  get  low,  the  boats 
would  have  to  lay  up  and  ({uit.  Whether  it  was  navigable 
befoi-e  the  state  put  these  dams  in  or  not,  I could  not  say,  be- 
('ause  that  was  J)efore  my  day.  (Abst.,  }).  1025.)  They  broke 
them  in  1870,  and  after  that  time  they  were  navigable  with  a 
small  boat  perhaps  six  months  in  the  year.  The  water  got 
down  to  a stage  where  that  little  boat  had  to  quit ; that  there 
was  not  over — on  the  shoal  jdaces  there  was  not  over  eighteen 
inches  of  water.  That  boat  had  one  barge  to  carry  freight 
on.  The  boat  was  75  feet  long  and  18  feet  wide.  Her  ma- 
chinery loaded  her  so  she  would  not  carry  over  30  or  40  tons. 
She  carried  her  freight  by  towing  a barge.  Tobacco  was  the 
principal  freight.  They  would  come  out  of  there  with  that 
barge  (Abst.,  p.  1025)  Vvdth  about  80  or  90  hogsheads  of  tobacco 
averaging  1,000  pounds  to  the  hogshead  or  up  to  about  50 
tons  besides  the  weight  of  the  casks  which  averaged  125 
pounds  apiece  and  would  make  five  or  six  tons  more.  I have 
navigated  the  Ohio  with  all  classes  of  boats  from  Cincinnati 
to  Evansville.  The  small  freight  boats  would  carry,  I should 
judge,  60  to  70  tons;  they  would  run  110  feet  long,  20  feet 
wide,  and  when  fully  loaded  draw  34  feet;,  half  loaded  they 
would  need  2 feet  of  water;  they  do  not  operate  on  less  than 

2 feet.  A good  portion  of  the  year  the  dams  in  the  Ken- 
tucky Eiver  are  entirely  covered  and  you  run  right  over  the 
top  of  them.  They  are  from  12  to  20  feet  high.  But  it  is 
too  swift  to  push  the  boat  over,  you  have  got  to  go  through 
the  lock.  Occasionally  we  do  run  over  the  top  of  the  dam; 
we  come  down  stream  over  the  dams.  If  there  is  5 feet  of 
water  over  the  dam  and  the  boat  draws  four  feet  we  come 
down  over  them  very  often,  but  we  cannot  go  up  stream  be- 
cause the  current  is  too  swift.  (Abst.,  p.  1026.)  One  can  easily 
go  over  a dam  when  he  has  a foot  fall  down  stream.  It  is  no 
risk  to  go  over  on  a drop  of  a foot.  It  is  a fall  of  a foot  per- 
haps in — well,  the  gauges  will  show  it  is  above  the  dam  or 
below  the  dam  in  that  distance  about  100  to  400  feet  on  the 
average.  I would  not  say  that  I have  or  have  not  gone  over 
it  on  a fall  of  two  feet  in  400.  (Abst.,  p.  1027.) 

I never  cordelled  a boat.  I have  sparred  a boat"  over  shal- 
low water.  When  you  want  to  lift,  you  set  two  spars,  one  on 
either  side,  straight  in  the  water,  and  have  a block  and  tackle 
from  the  top  of  the  spar  that  runs  down  through  a block  on 
the  deck  of  the  boat,  and  take  this  line  around  the  capstan. 


;ni(l  you  lifl  llio  lioud  of  your  bout,  up  off  llio  boiton,  nnd  Iboii 
to  luovo  it  they  will  tako  a yawl  or  lif(!-boal  aud  Tun  aslioro 
and  uiako  u lino  fast  aud  take  it  around  tli(‘  (aipstaii  and  trip 
those  spars.  That  makes  the  hojit  jmu])  aluaid.  All  lai*^»e 
boats  have  those  on  tlie  Oliio  aud  Keutu(*ky  Rivers.  I luwer 
kueAV  the  gasoline  boats  to  need  them.  (Ahst.,  p.  1029.)  I have 
wai'])ed  a l)arge  ou  the  Ohio.  You  put  a line  out  to  the  shoi'e 
to  a tree  oi*  anything-  tliat  will  liold,  and  l)ring  your  line  haek 
to  your  boat  aud  run  it  tljrough  a ])lock  or  pulley  and  onto  a 
line  that  inns  fore  and  aft  on  your  boat  from  a given  ])oint 
.‘diead  of  your  ])oat  to  the  point  forward  of  tlie  stern,  and  at- 
tacli  a line  to  that  and  take  to  a windlass  and  pull  u])  by  it. 
Sometimes  they  do  away  with  the  side  line  and  ])nsh  over  with 
jioles.  (Ahst.,  p.  1029.)  The  tow-boats  never  have  to  warp. 
When  the  river  gets  down  to  that  stage  the  tow-boats  quit. 
(Ahst.,  ]).  1029.)  They  seldom  have  to  quit  on  the  Kentucky, 
hut  the  time  on  the  Ohio  is  regular.  They  usually  wait  about 
Pittsburg  or  the  points  close  below  there.  They  arrange  their 
work  so  that  they  can  get  their  boats  all  hack  to  that  jioint  be- 
fore the  low  water  comes.  Occasionally  they  will  get  caught 
below  and  lay  up  there  for  several  weeks  until  the  water 
comes  again.  Sometimes  it  is  months.  They  nse  a few  of  the 
gasoline  boats  for  tow-boats,  towing  barges  around  Aladison, 
Indiana.  They  carry  wheat  and  cedar  and  locust  posts  and 
use  a gasoline  boat  to  tow  the  barge.  (Al)st.,  p.  1029.) 

As  we  write,  the  Chicago  Dailg  Neirs  for  Se])tember  21, 
1908,  pul)lishes  the  following  dis])atch  showing  the  low  water 
of  the  Ohio:* 

Again  the  (diicago  Daily  News  for  Odober  1,  1908,  contains  the 
following 

Joseph  E.  TIcCTh.louoii  (Ahst.,  ]).  1170)  : 

Iiesidence,  St.  Louis;  steamboat  i)ilot  and  master  40 
years. 

1 commenced  to  learn  the  river  in  1802,  serving  an  a])pren- 
*(By  The  Associated  Press.) 

“Gallipolis,  O..  Sept.  21. — To-day  marks  the  fortieth  day  without  rain  in 
this  section.  iMnch  suffering'  and  loss  has  been  caused  tliereby.  Farmers  are 
driving  stock  five  and  six  miles  in  some  sections  for  water.  Many  schools  in 
West  Virginia  districts  have  closed  and  oil  operations  have  had  to  cease  in 
some  localities  owing  to  the  water  famine.  The  Ohio  river  is  the  lowest  on 
record  above  here,  and  in  many  places'  teams  arc  fording,  there  being  only  eight 
inches  of  ivater  in  the  channel.  The  ferry  boat  Champion  has  stranded  on  the 
bar  at  Cheshire.” 

t(Ry  The  Associated  Press.) 

“Cincinnati,  O.,  Oct.  1. — For  the  first  time  in  twelve  years  not  one  of  the 
232  government  lights  on  the  Ohio  river  between  Pittsburg  and  Cincinnati  will 
he  lighted  to-night.  The  low  stage  of  the  river  that  caused  a complete  cessation 
of  navigation  between  Pittsburg  and  Cincinnati  led  to  the  order.  At  present 
there  are  only  three  light  draught  boats’  running  1)etween  Cincinnati  and  Louis- 
ville.” 


ti('(‘sliii)  IVoni  that  time  until  18()5,  got  my  I'lceiise  from  Ciu- 
('imiati  to  xMompliis  on  the  xM i.ssissip})i  J^iver,  and  afterwards 
learned  the  river  from  St.  Louis  to  New  Orleans  and  com- 
menced ])iloting  there  in  18()7.  I learned  the  Cumberland 
Kivei*  just  after  the  war,  18():^  or  18()d;  1 am  a ])ilot  from 
Huntington,  West  Virginia  to  New  Orleans,  and  from  St. 
Louis  to  New  Orleans,  and  from  Nashville  on  the  Cumber- 
land to  its  mouth.  The  most  rapid  water  I ever  navigated 
was  the  Falls  of  the  Oliio  and  Harbor  Shoals  on  the  Cumber- 
land. (Abst.,  y).  1176.) 

The  slo])e  of  the  Ohio  at  the  Ohio  l\ay)ids  is  28  feet  from 
the  bead  to  the  foot  of  the  fall  in  2 miles,  14  feet  per  mile. 
(Abst.,  p.  1177.)  The  Harbor  Shoals  in  the  Cumberland  have  a 
fall  of  over  8 feet  in  a mile  and  a little  over.  In  low  water 
they  used  to  warp  over  it  but  the  Government  placed  a lock 
and  dam.  There  are  locks  and  dams  on  the  Falls  of  the 
Ohio,  y)ut  there  by  the  Government.  Wherever  there  are 
shoals  or  rayiids  in  the  rivers  I have  been  on,  the  Govern- 
ment is  imy:)roving  them.  (Abst.,  p.  1177.)  With  all  the  water 
that  a boat  needs,  I don’t  think  it  could  be  navigated  over  a 
sloyie  of  over  4 or  5 feet  to  the  mile.  (Abst.,  yi.  1177.) 

I ran  a gasoline  boat  that  carried  Mr.  McCormick  of  the 
Tribune  to  Memphis — himself  and  his  wife  and  a party  of 
friends — a little  gasoline  boat,  a year  ago  this  spring. 
I have  seen  a great  many  of  those  boats  in  com- 
mercial matters  that  were  only  able  to  carry  about  10  tons; 
the  river  is  full  of  them  at  St.  Louis,  bnt  I neverHiad  any  con- 
nection with  them.  They  are  pleasure  boats.  A boat  50  or 
00  feet  long,  12  feet  wide  and  carrying  10  tons,  could  be 
navigated  on  6 or  7 inches  of  water.  (Abst.,  yo.  1178.) 

Mlf  record  as  a navigator  and  pilot,  if  I do  say  it  myself,  T 
can  y3rove  it,  there  are  few  equals  ami  none  my  superiors. 
(Abst.,  y).  1179.)  (A  wntness  for  the  defendant.) 

I should  say  navigable  in  shoal  water  would  not  be  over  44 
to  5 mile  current  (Abst.,  p.  1182). 

Being  shown  Executive  Document  264,  list  of  boats  on  yoage 
119  (Abst.,  y).  1179),  the  witness  says: 

I recognize  several  boats  named  there.  The  dey^th  stated 
there  (e.  g.  3 ft.  8 inches)  for  the  O’Neill  is  her  dey^tli  emyjty. 
(Abst.,  y).  1179.) 

I will  take  the  boat  that  I have  y^iloted  for  a good  many 
years  myself,  the  Alex  Swift.  She  is  a tow  boat.  The  depth 
given  there  is  5 feet  7.  She  never  drew  that  in  her  life.  She 
would  not  draw  3 feet.  She  did  not  carry  freight;  she  was  a 
tow-boat.  (Abst.,  p.  1179.)  The  depths  given  for  these  boats 
are  their  depths  em])ty.  IVhen  they  speak  of  the  dey^th  of  the 
hold  of  the  boat  they  do  not  sy^eak  of  what  she  drrfws  forward 
or  aft,  hut  they  sy^eak  of  the  shallowest  yhace  in  her.  If  her 


liiill  is  just  six  r(‘(‘l  ('l(‘nr  tluui  tlial  iiiciins  tlie  sli;i!l()\v(‘sl  plfu*(; 
in  luM-.  ( Abst.,  j).  1 171).) 

Q.  Does  it  not  mean,  when  rererrir.i*'  to  the  depth,  the  depth 
to  whieh  yonr  boat  may  be  sunk  in  the  water  if  it  is  loaded, 
witliont  flooding’  the  boat? 

A.  Yon  ean-Joad  it  to  that  deptli  at  one  i)lace  (Abst.,  p. 
1171)).  Ill  referring  to  the  deptli  it  means  the  extent  to  which 
yon  can  put  tlie  slial lowest  part  of  yonr  boat  down  into  the 
water,  loaded,  all  she  will  carry  in  that  particular  place. 

Q.  1 am  talking  about  this  table  and  these  lioats;  it  does 
mean,  when  the  boat  is  loaded  it  will  take  in  that  part  its  depth 
mentioned  here;  isn’t  that  true? 

A.  I guess  that  would  be  true  in  regard  to  that  book,  with 
regard  to  that  whole  table  of  boats.  That  is  what  I mean; 
yes,  sir.  (Abst.,  p.  1179.) 

Isaac  N.  Mason  (Abst.,  p.  1217)  : 

78  years  old;  residence,  St.  Louis;  steamboating  since 
1846.  I began  as  second  clerk  on  the  steamer  Consul  (Abst., 
p.  1217)  ; was  freight  agent  on  the  Northern  Line  for  seven 
years;  then  I got  into  politics  as  marshal,  sheritf  and  city 
auditor. 

C ross-Exa  in  i n a ti  o n . 

I saw  the  Des  Plaines  Liver  once  hve  weeks  ago  and  again 
to-day,  this  morning.  It  is  now  12  minutes  after  11.  I ar- 
rived in  Joliet  this  morning  from  St.  Louis  and  took  a two- 
horse  rig  and  drove  down  to  the  mouth  of  the  stream  (16 
miles),  then  drove  over  to  Minooka;  we  had  a drive  of  25  to 
30  miles  by  team  and  we  took  the  train  for  Chicago  at  a place 
about  50  miles  out.  (Abst.,  p.  1218.)  1 got  into  Chicago  before 
ten  o’clock. 

(The  witness  took  a carriage  ride  of  30  miles  and  a railroad 
ride  of  50  miles  between  haff  i)ast  six  (])age  2983,  where  de- 
fendant’s counsel  corrects  him  to  say  half  ]^ast  five  A.  M.) 
and  10  A.  ]\f.,  besides  visiting  the  river  for  the  ])urpose  of  tes- 
tifying about  it  as  an  expert.) 

When  1 was  first  and  second  clerk  T had  nothing  to  do  with 
navigating  the  boat  (Abst.,  ]).  1219) ; 1 used  to  sell  tickets  and 
collect  the  money  (uL).  My  work  from  Pittsburg  to  8t.  Louis 
was  as  ca])tain  and  clerk  and  handling  of  freight.  I used  to 
])ilot  for  exercise  (Abst.,  ]).  1219).  I never  had  a ])ilot’s  license 
{id.).  As  general  freight  agent  of  the  Northern  Line  I had 
an  office  on  the  wharf  boat  where  the  l)oats  landed.  I liarl 
notliing  to  do  with  navigating  the  boats.  That  lasted  until 
1874.  Then  1 was  city  and  county  marshal  and  slierjff  (Abst., 
]).  1219);  then  1 was  city  auditor.  That  takes  us  up  to  1883 
(Abst.,  p.  1219).  Then  I v/as  President  of  the  Anchor  Line  for 
ten  years,  but  I was  not  engaged  in  any  active  piloting  of 
boats;  it  was  the  Imsiness  end  I had  charge  of.  Then  I was 


(‘kn'ted  president  of  mining  e()mj)anies.  (Ahst.,  p.  1219.)  It 
is  lair  to  say  that  1 have  had  ])raeti(!ally  no  exj)ei‘ienee  in 
navigating  a boat.  I have  liad  ex])erienee  as  a niastei-.  (Al)st., 
j).  1219.)  I stood  wat('h  on  one  trip  in  18()0  (joining  up  tlie 
Mississippi  to  (Ineinnati,  as  pilot.  I have  no  doubt,  fui'ther 
than  that  1 stood  a wateli  as  an  engiiieer  on  the  ])oat,  and  got 
to  be  a sort  of  an  engineer  {id.). 

1 lie  bhills  ot  the  Ohio  are  aliout  20  feet  in  low  water  in  less 
than  two  miles.  (xVbst.,  ]).  1219.)  The  greatest  slope  I have 
])assed  over  in  a boat  is  the  Falls  of  the  Ohio  Kiver  at  Louis- 
ville, whieli  are  about  20  feet  in  less  tlian  two  miles.  The 
boats  ])assed  up  over  them  only  in  liigli  water.  (Abst.,  p.  1220.) 
The  euri'ent  in  high  water  would  average  0 to  8 miles  an  hour. 
At  higli  water  the  falls  was  covered  so  you  couldn’t  observe 
the  falls  at  all  (id.). 

I know  of  rivers  that  are  navigated  where  they  don’t  have 
locks  and  dams  somewhere  along  the  river,  yes,  sir;  the  Cum- 
berland, the  Tennessee  and  the  AVabash.  We  have  no  locks 
and  dams  in  those  rivers,  not  in  tlie  Cumberland  and  Tennes- 
see. Also  the  Allegheny,  there  are  no  locks  and  dams  in  the 
Allegheny  (Abst.,  p.  1220);  my  memory  ain’t  clear  about  the 
AA'abash.  T say  there  are  no  locks  and  dams  on  either  the 
Cumberland  or  the  Tennessee.  (Abst.,  p.  1220.)  They  have 
Imilt  wing-dams,  but  not  regular  dams  across  the  river,  and 
the  Tennessee  and  tlie  Cumberland  Eiver  are  both  liadly 
hampered  with  bridges.  A wing  dam  is  to  narrow  the  stream 
and  im])rove  the  depth  of  the  channel.  (Abst.,  p.  1220.)  At  the 
Falls  of  Oliio  in  high  water  the  falls  is  obliterated  so  you 
can’t  see  any  fall  in  the  river.  (Abst.,  p.  1221.) 

AIinor  Trtbi'taetes  of  the  Misstssippt. 

AYm.  R.  Tibbals  (Abst.,  p.  624)  : 

Home,  Dubuque,  since  1857;  age  76;  navigator  of  Missis- 
sippi and  tributaries  since  1854.  Licensed  as  pilot  in  1855.  I 
was  U.  S.  Supervising  Inspector  of  steam  vessels  for  the  5th 
Inspection  District  for  four  years,  1895-1899.  It  covered  the 
Mississippi  and  its  tributaries  from  Keokuk,  Iowa,  to  St.  Paul, 
Minnesota,  and  the  part  from  Lake  Superior  that  bordered 
onto  MTsconsin  (Abst.,  p.  624).  It  included  the  Iowa,  the  Wis- 
consin, Chippewa  and  St.  Croix.  In  1855  the  water  in  the 
Mississippi  got  very  low,  down  to  about  26  or  27  inches  in 
the  20  miles  between  Lake  St.  Croix  and  St.  Paul.  AVe  then 
had  steamboats  on  the  Mississippi,  some  of  them  drawing 
12  inches  unloaded  and  that  would  carry  80  tons, 
and  draw  loaded  from  2 to  24  feet.  They  would  be  120  feet 
long  and  20  feet  beam.  The  Enterprise  drew  10  inches  or 
less  unloaded  and  28  to  20  inches  when  loaded  and  cariled 


I 


577 


75  tons.  (Abst.,  }).  (>55.)  Sev(3rnl  boats  used  to  tuii  u[)  the  Iowa 
Iliver  from  New  Boston  and  bring  out  freight.  They  drew 
fi-om  inches  to  18  or  20.  There  were  2 boats  towing  barges, 
2 barges  to  each  boat.  Their  loads  consisted  of  sacks  of 
corn — 1,000  sacks  on  each  barge  and  1,000  on  the  boat.  The 
boat  drew  31  inches  of  water  and  the  barges  2 feet.  I have 
steamboated  on  the  Mississippi  on  34  inches  of  water.  (Abst., 
p.  036.) 


The  Missouei  Eivek. 

Lymah  E.  Cooley. 

Engineer. 

In  1878  I entered  the  service  of  the  United  States  upon  the 
inpDrovement  of  western  rivers,  under  the  engineer  corps  of 
the  U.  S.  Army,  and  continued  in  that  service  until  the  fall 
of  1884,  and  during  that  time  was  resident  engineer  at  Ne- 
braska City,  Nebraska,  on  the  improvement  of  the  Missouri 
Kiver,  at  St.  Charles,  Missouri,  and  also  upon  the  improve- 
ment of  the  Missouri  Eiver;  and  for  two  years  was  general 
assistant  in  charge  of  all  the  works  upon  the  Missouri  Eiver 
from  Yankton  to  the  mouth,  some  thirteen  in  number. 

My  experience  in'  that  period  covers  also  surveys  of  the 
Mississippi  Eiver  between  Cairo  and  Memphis,  and  surveys 
upon  the  Missouri  Eiver  and  the  reduction  of  physical  data 
upon  the  Missouri,  Mississippi  and  other  western  rivers.  In 
fact,  I had  the  supervision  of  much  of  that  work. 

Our  work  consisted  in  the  improvement  of  the  river  at  the 
various  points  along  the  Missouri  Eiver,  and  we  performed 
the  work  by  means  of  our  own — we  furnished  bur  own  trans- 
portation. We  did  not  have  the  use  of  steamboats.  (Abst., 
p.  794.) 

Nebraska  City  is  about  fifty  miles  south  of  Omaha  and 
about  ten  miles  north  of  the  State  line  between  Iowa  and 
Missouri,  in  the  State  of  Nebraska.  The  work  was  primarily 
for  the  maintenance  and  improvement  of  the  navigation  of 
the  Missouri  Eiver,  and  related  to  the  maintenance  of  banks 
and  the  regulation  of  the  stream.  We  also  made  extensive 
surveys  and  physical  observations  for  determining  the  change 
in  the  river  bed,  the  volume  of  the  stream,  and  kept  records 
of  the  stages  of  water. 

In  the  course  of  that  work  I had  the  duty  of  testing  and 
making  use  of  the  navigation  of  the  Missouri  Eiver  in  the 
reach  in  the  vicinity  of  Nebraska  City. 

For  the  first  year  of  our  work  at  that  point  we  performed 
our  transportation  without  the  aid  of  steamboats  and  handled 
stone  over  a considerable  length  of  river. 


\\\i  Iwid  (hit  boats  wliicJi  we  eonstriieted  for  the  purpose, 
iliat  wei'e  al)out  1()  feet  wide  and  about  two  and  a half  to  three 
feed  deep,  and  (iO  or  70  feet  long-,  carrying  40  to  60  tons,  and 
we  maneuvered  them  or  propelled  them  ])y  means  of  sails, 
sweeps  (a  long  oar  o[)erated  by  a num})er  of  men),  and  by 
coi-delling  along  the  river  bank. 

The  process  of  cordelling  that  we  used  is  that  by  which  a 
number  of  men  will  ])ull  the  boat  up,  walking  along  the  river 
bank,  by  means  of  a line  attached  to  the  bow  of  the  boat.  ( Abst., 
p.  7iM.) 

The  second  year  we  had  the  use  of  a small  steamboat 
which  drew  20  inches  to  two  feet  and  a half  of  water,  and 
about  13  or  14  feet  wide,  and  56  feet  long,  and  with  that  we 
were  able  to  tow  two  of  these  barges  up  stream  loaded,  and 
did  during  that  season  tow  most  of  our  brush  from  a point 
several  miles  down  the  river  up  to  the  site  of  our  work.  We 
had  currents  generally  in  the  Missouri  Eiver  of  five  to  seven 
miles  per  hour,  and  operated  this  boat  in  the  teeth  of  such 
currents  throughout  the  high  water  season  of  1879,  and  we 
had  opposite  our  work  a current  which  averaged  through- 
out the  flood,  eight  miles  per  hour. 

I performed  and  saw  navigation  performed  against  that 
current  during  that  period.  There  were  a number  of  boats 
went  up  the  river  that  season,  and  I remember  measuring  the 
current  at  Wyoming  Bluff,  and  ascertaining  the  actual  meas- 
ured velocity  of  twelve  miles  per  hour,  the  mean  velocity  for 
the  whole  cross-section. 

We  measured  that  cross-section  in  boats,  and  boats  passed 
up  the  river  during  that  flood. 

^‘The  Nebraska  City  reach, as  we  used  it,  was  a reach 
of  river  extending  up  stream  about  16  to  18  miles,  to  what  we 
call  the  Platsmouth  reach,  and  consisted  of  a succession  of 
bends,  with  good  depth  of  water,  and  intermediate  crossings 
between  the  bends  u])on  which  there  were  shallow  depths  of 
water,  and  one  particular  reach  known  as  Copeland’s  Bend, 
in  high  water  was  spread  out  to  one  and  a half  miles,  and 
divided  into  a number  of  channels,  in  which  the  water  was 
very  shallow  and  variable  in  depth  during  the  low  water  sea- 
son. (Abst.,  pp.  795-6.) 

The  usual  depth  in  lovr  water  was  two  and  a half  to  three 
feet  on  the  crossings,  but  at  times  we  had  depths  of  15  to  20 
inches  upon  the  bars  of  Copeland  bend. 

The  beuds  of  the  Missouri  Biver  are  usually  about  three 
or  four  miles  long  wuth  an  intermediate  crossing  of  a mile 
or  more  to  the  next  bend.  The  Missouri  Biver  is  quite  un- 
stable, and  these  bends  in  high  water  are  cutting  the  banks 
more  or  less  continuously,  and  dumping  their  loads  on  the 
crossings,  which  makes  a very  variable  channel,  one  chang- 


579 


ill  (lo})lli  and  lixaiiion,  so  that  llui  [lilols  in  riavi^2;atin^  the 
riven*  haw  to  searedi  out  a new  eliannel  every  trip. 

Tlie  iMissouri  KMver  is  a very  unstable  river,  in  fact  tlie 
whole  river  is  unstable,  (diaracteristically  so  among  American 
rivers,  consisting  of  light  alluvium  and  sands  lirought  down 
from  the  upper  waterslieds  and  easily  eroded. 

In  low  water  it  was  from  500  feet  to  a mile  wide  in  some 
of  the  very  thin  places  on  Copeland’s  bend.  Tn  higli  water 
it  occupied  the  full  width  between  the  banks,  usually  a quar- 
ter of  a mile  to,  in  extreme  cases,  a mile  and  a half,  as  I have 
stated,  and  overflowed  the  bottom  lands  to  a great  depth. 
(Abst.,  p.  795.) 

Generally  in  the  narrow  places  the  river  was  deep,  and 
the  current  continuous  from  shore  to  shore  exce]h  on  the 
convex  side,  where  there  was  some  shallower  or  stationary 
water.  Probably  three  quarters  of  the  width  would  be  occu- 
pied by  a rapid  current. 

And  where  it  spread  out  to  a mile  and  a half  wide  the 
current  would  be  very  slack,  at  certain  stages  of  water,  but 
the  bars  filled  up  from  the  cuttings  in  the  bend,  the  erosion, 
these  crossings  or  places  were  dumps,  as  it  were,  and  at 
times  the  current  would  become  very  swift. 

In  low  water  these  narrow  channels  were  sometimes  very 
narrow,  only  100  feet  to  100  yards  in  width. 

The  bars  are  located  always  with  definite  reference  to  the 
bends.  They  lie  between,  but  in  their  characteristics  are  un- 
stable, shifting  both  in  elevation  and  in  location.  In  low 
water  the  navigation  of  such  places  becomes  quite  difficult. 
(Abst.,  p.  796.) 

I have  seen  the  bars  shift  and  the  channel  change  in  the 
course  of  a day  or  two,  and  again  they  would  persist  for 
weeks  in  the  same  locality. 

In  some  of  these  bed  crossings  the  channel  would  pass 
from  one  side  of  tlie  river  to  the  other  two  or  three  times 
in  the  course  of  a mile.  It  would  be  extremely  sinuous,  so 
that  a boat  had  difficulty  in  tlireading  them,  might  often 
flank  itself  across  the  current  in  such  a manner  that  it  had 
to  put  out  lines  in  order  to  get  through,  or  use  the  boat  s])ars 
for  the  purpose  of  holding  it  in  position  until  it  could  work 
through. 

I was  at  Nebraska  City  doing  this  work  for  two  yeai's. 
There  were  a number  of  boats  ])assed  up  the  Mis- 
souri River  every  season  in  the  up  ilvei*  and  Port  Benton 
trade  from  St.  Louis.  Usually  made  two  tri])S  from  the 
opening  of  the  season  u])  to  August,  when  the  water  began 
to  get  low,  and  some  of  those  boats  were  very  large  boats, 
capalfle  of  carrying  a tliousand  tons  of  freiglit.  (Abst.,  pp. 
796-7.) 


They  made  two  round  trips  to  Fort  Benton,  a distance  of 
about  2, -too  miles  from  St.  Louis.  They  would  carry  a thou- 
sand tons  of  freight  on  four  feet  of  water.  Tliere  were  four 
('haracteristic  boats  that  were  in  the  Missouri  trade  at  the 
time  I was  on  the  river;  the  Montana,  Dakota,  tlie  Wyoming 
and  the  Idaho,  wliicli  were  45  to  48  feet  wide,  250  to  260  feet 
long, — in  length, — and  with  a depth  of  hold  of  four  and  a half 
to  hve  and  a half  feet,  and  they  would  run  on  12  to  14  inch 
light  and  load  down  to  four  feet,  and  thus  loaded  would  carry 
about  a thousand  tons  of  freight. 

There  were  numbers  of  smaller  boats  which  passed  up  and 
down  the  river  while  I was  at  Nebraska  City;  a characteristic 
size  l)eing  from  28  to  32  feet  wide,  150  feet  long,  with  a depth 
of  hold  of  three  and  a half  to  four  feet,  and  running  on  eleven 
to  twelve  inches  of  water  light,  and  loaded  two  to  two  and  a 
half  feet,  and  capal)le  of  carrying  300  tons. 

These  boats  were  used  largely  in  the  upper  river  from 
Sioux  City  and  Yankton  north,  and  passed  to  and  fro  in  their 
trips  to  St.  Louis. 

The  upper  Missouri  River,  referring  to  the  river  above 
Sioux  City,  was  habitually  navigated  by  these  smaller  classes 
of  boats  throughout  the  season.  The  larger  boats  usually 
went  out  of  commission  in  August.  They  had  200  to  300  tons 
carrying  capacity  on  two  and  a half  feet  of  water. 

AVe  had  a survey  party  which  was  making  a complete  sur- 
vey of  the  Missouri  River,  whose  trips  extended  up  to  the 
three  forks,  above  Port  Benton,  and  in  the  intervals  of  work 
in  the  field,  we  put  in  our  time  in  reducing  the  data  in  regard 
to  the  Missouri  River  and  other  western  rivers,  and  were 
familiar  with  the  conditions  in  the  extreme  upper  Missouri. 
(Abst.,  p.  797.) 

In  the  upper  Missouri,  above  Carrol,  or  at  the  mouth  of  the 
Milk  River,  some  250  miles  from  Fort  Benton,  the  stream 
is  a stream  with  a fixed  stream  bed,  a fixed  regimen,  com- 
]iaratively  speaking,  with  a number  of  rapids  which  were 
drowned  out  in  extreme  high  water,  but  in  moderate  stages 
of  water  there  were  velocities  upon  these  rapids  of  eight  to 
ten  miles  per  hour,  and  the  steamboats  at  times  had  to  warp 
over  them.  They  would  put  out  a line  up  stream  a quarter 
or  a half  mile  and  wind  up  the  rapids  with  a steam  capstan  on 
the  bow  of  the  boat,  fixed  on  the  bow  of  the  boat.  This  would 
be  going  up  stream;  down  stream  they  would  run  with  the 
current  and  their  own  ordinary  power. 

I was  located  at  St.  Charles,  which  is  another  part  of  the 
^tissouri  River  for  two  years.  T was  located  one  winter 
at  the  Plum  point  reach  of  the  Mississippi  River  between 
Cairo  and  Memphis,  where  we  had  the  use  of  a small  tow- 
boat, and  had  currents  in  high  water  of  five  miles  per  hour, 


io  six  niik's  por  hour,  and  at  Kort  I?illow  eddy,  wliieh  \v(i 
used  to  I'uu,  we  souietiiues  sti'uck  curi’erds  of*  twelve  miles  per 
hour. 

I do  not  think  \ have  ever  seen  au  ei^iit  mile  eurrent  in  tlie 
.Mississippi  Iviver  i)roper  below  St.  l^ouis,  but  in  the  Missouri 
River  it  was,  except  in  connection  with  the  Fort  Jdllow  loca- 
tion. I have  also  examined  some  of  the  tril)utaries  of  the 
^Missouri  River,  the  minor  tributaries,  among  which  was  the 
Oasconade  River,  which  had.  12  to  18  inches  of  water,  and 
upon  which  we  spent  money  in  improvements. 

There  was  a small  steamboat  that  ran  up  to  Vienna,  that 
drew  ten  to  twelve  inches  of  water,  and  ran  up  on  18  inches ; 
a boat  about  14  feet  wide,  and  perhaps  100  feet  long,  if  I 
remember  it,  with  a stern  wheel.  It  would  carry  50  to  60 
tons.  (Abst.,  p.  798.) 

It  could  actually  run  on  12  inches,  and  was  actually  em- 
ployed on  12  inches  in  moving  out  rafts  and  ties  on  fiat  boats, 
and  on  rafts  bound  together  in  the  river. 

The  Gasconade  River  comes  into  the  Missouri  River  at 
Herman,  a few  miles  below  Jefferson  City,  and  is  a tributary 
from  the  south.  It  varies  greatly  in  width,  being  150  feet 
wide  as  I .iudge  it  at  the  mouth.  I did  not  go  up  the  river 
itself.  (Abst.,  ]>.  799.) 

St.  Charles  is  located  upon  the  Missouri  River  about 
twenty-five  miles  from  its  mouth,  and  about  twenty-five  miles 
by  rail  from  the  City  of  St.  Louis.  The  work  tliere  was 
of  a similar  character  to  that  performed  at  Nebraska  City, 
the  work  of  holding  the  river  hank  and  training  the  river 
channel,  and  in  the  intervals  making  measurements  of  the 
flow  and  of  the  movement  of  the  bottom  of  the  stream,  and 
of  keeping  the  records.  (Abst.,  p.  800.) 

J.  AY.  WOERMANN  : 

In  June,  1890,  I re-entered  the  service  of  the  United  States 
in  connection  with  the  survey  of  the  Missouri  River,  and  for 
a short  time  was  engaged  upon  triangulation  work  between 
Sioux  City  and  Omaha,  and  during  the  remainder  of  the  year 
upon  the  survey  of  the  Upper  Missouri  River,  above  Fort 
Benton.  On  the  Upper  River  I had  charge  of  a level  party, 
from  the  head  waters  at  Gallatin,  where  the  Madison  and 
the  Jefferson  and  the  Gallatin  unite  to  form  the  Missouri 
down  to  Fort  Benton,  a distance  of  about  250  miles. 
There  was  no  navigation  there  except  ferry  boats  at  a 
few  places,  rope  ferries.  We  built  two  barges  at  the  head 
waters  and  covered  them  with  canvas,  and  floated  down.  We 
proceeded  as  far  as  Great  Falls,  where  we  had  to  abandon  the 
l)oats  altogether  and  use  wagons  from  that  point  down  to 


Fort  l>entoii.  That  was  about  20  miles.  We  had  to  use  a 
rope  to  let  us  down  over  most  of  the  rapids.  (Abst.,  pp. 
1428-9.) 


Thomas  T.  Johnston, 

For  defense: 

In  Se])tember,  1879,  1 was  assigned  to  a survey  of  the  Gas- 
eonade  River  in  Missouri,  which  work  engaged  my  attention 
until  in  December  of  that  year. 

In  the  winter,  the  early  winter  of  1880,  I was  in  the  St. 
Louis  engineer’s  office,  writing  up  the  notes  of  the  survey 
of  the  Gasconade  River,  and  was  assigned  from  time  to  time 
to  miscellaneous  duties  in  connection  with  the  study  of  the 
physical  characteristics  of  the  western  rivers. 

In  the  summer  of  1880  I was  assigned  to  the  charge  of 
making  a survey  of  the  Missouri  River  in  the  vicinity  of 
Yankton,  Dakota,  and  of  Running  Water,  Dakota,  or  Nio- 
brara, I think  it  is  called. 

In  the  fall  of  1880  I was  assigned  to  the  river  improve- 
ment work  on'  the  Gasconade  River  in  Missouri,  of  which  I 
had  charge  of  making  the  survey  the  previous  year,  and  that 
engaged  my  attention  until  December  of  1880. 

On  returning  from  the  Gasconade  River  to  the  St.  Louis 
office  of  the  engineer  corps,  I was  assigned  through  the  first 
nine  months  of  1881  to  work  in  connection  with  the  study  of 
physical  characteristics  of  the  western  rivers,  incidentally  in 
that  spring  making  an  inspection  of  the  Missouri 
River  from  Sioux  City  to  its  mouth,  with  reference  to 
the  effect  of  a considerable  flood  that  occurred  in  the  spring 
of  1881.  In  the  fall  of  1881  I was  assigned  again  to  im- 
provement wmrks  on  the  Gasconade  River,  which  engaged  my 
attention  until  the  last  of  the  year.  (Ab^t.,  p.  1368.) 

In  1883  until  the  middle  of  the  year  I was  engaged  in  the 
same  duties  as  through  the  year  1882.  In  the  fall  of  1883,  and 
until  the  end  of  the  year  I was  assigned  to  duties  in  connec- 
tion with  improvements  on  the  Missouri  River  at  St.  Joseph, 
Missouri.  (Abst.,  p.  1369.) 

J.  AY.  Rambo  (Abst.,  p.  1160)  : 

I have  been  at  the  Rock  Island  Rapids  45  years.  Age  64. 
Got  first  papers  in  1864.  Before  that  I was  working  as  a com- 
mon raftsman  on  the  river.  I was  a common  laboring  man — 
pulling  what  we  used  to  call — pulling  it  over  on  a floating 
raft.  (Abst.,  p.  1160.)  I do  not  think  it  possible  to  navigate  a 
river  with  a 16  feet  fall  to  the  mile  with  anythfng  we  have  got 
in  our  steamboat  line  in  this  country.  I mean  the  Mississi])]n 
River  and  its  tributnries.  1 have  run  boats  that 


r)8:j 

have  been  vauaUui  Iheve  on  ihc  Fox  lliver  in  Wisconsin 
bat  theif  could  not  (jo  np  over  oar  rapids.  I huvci  rurj  boats 
oil  the  JMississi])])]  that  eoine  from  the  Fox  Iliver  down  th(o-e. 
Tliey  always  had  to  have  a pilot  to  take  them  over  there. 
They  eon  Id  not  go  alone.  (Al)st.,  j).  11()3.) 

Thomas  F.  Boyle  (Abst.,  p.  1179)  : 

Home  St.  Louis.  1 think  1 am  about  60,  I ain’t  positive. 
Business,  steamboat  pilot.  Got  pilot  license  in  1871 ; have 
had  master’s  license  for  25  years  I believe — covering  the 
Mississippi  from  Grafton  to  New  Orleans;  the  Ohio  to  Pa- 
ducah ; the  Oachita  and  its  tributaries  and  the  Arkansas 
River  to  Little  Rock.  I piloted  the  Arkansas  for  10  years 
during  the  cotton  season.  Then  we  took  the  boat  off;  busi- 
ness slacked  up.  They  built  a railroad  up  tliere  and  they 
took  the  boat  out.  Going  up  from  New  Orleans  200  miles 
you  come  to  the  Red  River — you  go  up  65  or  70  miles  and 
come  to  the  Black  River;  and  25  or  30  miles  up  that  you  come 
to  the  mouth  of  the  Ouschita.  That  empties  into  the  Black. 
I piloted  the  biggest  boat  that  ever  left  St.  Louis — the  Grand 
Republic;  and  the  very  smallest  boat — and  the  middle  class. 
(*Abst.,  p.  1179.) 

The  Arkansas  is  the  toughest  river  on  earth  and  the  worst 
of  them  all.  The  lightest  draft  I ])iloted  doesn’t  draw  over 
18  inches.  1 know  the  dohn  H.  IlaiRin.  She  is  the  lightest 
boat  built  and  doesn’t  draw  over  12  inches. 

I have  not  done  anv  war})ing  Imt  have  seen  it  done.  (Abst., 

p.  1180.) 

The  Des  Plaines  could  be  used  for  pur})oses  of  useful  com- 
merce if  you  had  money  enough,  but  I tliink  it  would  break 
the  State  of  Illinois.  In  its  ])i‘esent  condition  1 do  not  think 
it  is  navigal)le.  (Trans.,  -1082.) 

1 meant  to  say  that  there  is  nothing  impossible.  Aroney 
can  do  almost  anything  in  the  sha])e  of  labor  in  a river,  but 
it  would  take  time  to  do  it. 

I never  was  out  on  falls  or  any  of  those  ])laces  and  1 went 
on  the  Ohio  only' to  Paducah.  I (‘an’t  tell  what  the  slope  per 
mile  is  in  the  AIississi])])i  or  any  stream.  I don’t  think  1 have 
navigated  any  stream  where  the  fall  ])er  mile  is  more  tlian 
one  foot. 

I liave  liad  no  ex})erience  on  a river  witli  a fall  of  6 feet 
to  tlie  mile  or  10  feet  to  the  mile.  (Trans.,  ])p.  4082-7.) 

I think  the  Arkansas  is  ])retty  narrow.  Tlien  it  is  full  of 
snags.  It  is  the  worst  river  on  earth.  In  some  ])laces  it  is  so 
narrow  when  in  lov/  water,  you  get  agi'ound  you  liave  got 
to  get  a yawl  down,  put  a line  in  a yawl  and  go  aliead  and 
tow  it.  (Trans.,  p.  4088  ) Some  ])laces  it  is  a cjuarter  of  a mile 
wide  and  some  an  eiglitli.  In  low  water  the  channel  wliere 


you  navigate  would  ho  about  40  toot.  TJiere  is  times  when 
the  JIarbin  eaimot  run  there.  We  seen  times  when  she  couldn’t 
go  thei-e  tor  want  ot  water.  (Abst.,  ]).  1181.)  Down  below  St. 
Louis  the  euiTont  ran  at  tlie  rate  of  7 miles  an  hour.  (Abst., 
p.  1181.)  I think  a boat  can  navigate  a greater  current  de- 
pending on  the  ])ower  of  the  boat  {icL).  My  boat  can  go 
against  a lO-mile  current  easy  enough.  (Abst.,  j).  1182.) 

Nature  of  the  Navigation. 


''The  conditions  under  which  steamboats  operate  on  the 
Missouri  Eiver  in  the  transportation  of  freight  and  pas- 
sengers are  so  totally  different  from  those  on  eastern  rivers 
that  their  design  in  all  senses  has  to  conform  to  the  necessi- 
ties of  the  case.  Persons  who  have  never  traveled  on  the 
western  rivers  laugh  at  the  idea  of  a great  improvement  in 
navigation  being  attained  by  making  a free  channel  of  3 feet 
or  30  inches  depth. 

The  prominent  feature  of  the  river  with  which  this  report 
is  concerned  is  its  shallowness,  and  hence  it  is  the  style  of 
hull  which  is  of  main  importance.  The  boat  must  be  of  very 
light  draught  and  hence  their  great  length  and  width  in  pro- 
])ortion  to  their  depth.  The  style  of  the  hull  varies  in  shape 
from  the  flat  bottom  scow  model  to  one  possessing  some  ele- 
gance of  proportion.  But  in  general  the  sides  between  the 
ends  of  the  forward  and  stern  shears  and  the  bottom  of  the 
hull  are  true  planes,  at  right  -angles  to  each  other.  A cross 
section  of  the  hull  near  amidships  will  generally  be  a rect- 
angle. It  is  necessary  to  make  the  bottom  a horizontal  plane 
from  the  fact  that  in  shallow  water  the  boat  is  constantly 
touching  bottom,  and  often  lies  aground  for  hours  at  a time, 
in  which  case  a large  part  of  the  boat’s  weight  is  supported 
by  the  river  bed.  Hulls  designed  to  carry  are  built  with 
reference  chieflv  to  buovancv  or  total  displacement.”  (Abst., 
p.  1192.) 

United  States  Engineer’s  Eeport,  1878,  Part  I,  page  696, 
(Abst.,  p.  1192-3). 

"A  very  full  and  complete  description  of  the  Missouri 
Eiver  is  given  in  Howell’s  Eeport,  and  it  is  therefore  unnec- 
essary to  enter  into  any  minute  details.  T will  simply  state 
that  the  river  between  Benton  and  Carroll  may  be  consid- 
ered as  having  a fixed  regimen,  and  the  work  necessary  for 
its  improvement  is  simply  in  its  character  and  will  be  per- 
manent in  its  effects.  There  is  plenty  of  water,  the  low  water 
discharge  as  Dauphin’s  Eapids  computed  from  current  obser- 
vations made  last  summer,  being  11,062  cubic  feet  per  second. 
The  surface  rate  of  current  for  low  water  is  3.2  miles  per 


58.") 


hour,  and  I'oi*  a nuMlium  hii>'li  sla^(i  it  is  4.‘>  inil(*s  [)(;r  hour. 
IMio  avoi'ago  fall  Tor  u distaiute  oi*  .‘>,200  1‘eet  is  at  the  rato  of 
8.9  J'eof,  and  for  1,000  feet  of  that  distance  the  fall  is  at  tiie 
rate  of  if. 42  feet  per  mile. 

‘‘Before  making  any  suggestion  as  to  the  work  whicli 
should  be  done  in  this  portion  of  the  river,  I shall  refer  to  the 
lower  reach  of  the  stream  or  that  between  Carroll  and  the 
mouth  of  the  Yellowstone. 

“The  obstructions  to  the  navigation  of  this  latter  portion 
consists  of  snags  and  shifting  sand  bars.  The  snags,  how- 
ever, are  not  of  frequent  occurrence,  and  as  the  boats  never 
run  at  night  save  when  there  is  a bright  moon,  and  as  they 
run  entirely  by  the  appearance  of  the  water,  I do  not  consider 
the  snags  of  sufficient  importance  to  call  for  .au  expenditure 
of  time  and  money  for  their  removal.  I understand  too  that 
the  ice  each  year  removes  a great  portion  of  them  and  that 
their  places  are  supplied  by  new  ones  during  each  flood.  I 
have  learned  of  no  boat  which  has  ever  been  injured  by  snags 
in  the  Missouri  above  the  mouth  of  the  Yellowstone. 

“Sketches  9 and  10,  the  formeiqof  Bird^s  (Atlas,  p.  1193) 
Island,  about  fifteen  miles  below  Carroll,  and  the  latter  of 
Spread  Eagle  Bar,  will  convey  a slight  idea  of  the  nature  of 
the  obstructions  due  to  shifting  sand  bars.  While  these  bars 
cause  delays  still  they  are  not  impassable  and  the  boats  can 
‘get  over’  by  ‘spurring’  or  ‘laying  lines.’  ” 

Then  there  follows  a list  of  24  rapids  and  obstructions  with 
suggestions  for  their  improvements,  the  description  of  which  in- 
volves a great  deal  of  repetition,  and  T will  offer  the  whole  busi- 
ness in  down  to  the  mark,  to  No.  24  on  page  698.  (Abst.,  pp.  1193- 
119-1.) 

“Shonkin  Bar  (Sketch  No.  1) — Two  bars  are  found  at  this 
place,  the  mpper  one  diy  and  the  lower  one  submerged  at  all 
times.  Erom  the  upper  bar  a gravel  reef  makes  out  obliquely 
across  the  stream  to  the  ])oi]it.  At  low  water  stage  there  are 
only  twenty  inches  of  depth  on  the  reef.  In  the  sketch  the 
full  line  indicates  the  high  water  channel  and  the  broken  one 
the  low  water  channel.  To  impi'ove  this  place  it  is  proposed 
to  build  out  from  the  upper  bar  on  the  reef  a wing  dam  so 
as  to  confine  the  water  to  a narrower  channel  and  thus  obtain 
an  increased  depth  on  the  reef.  The  term  reef  is  here  used 
arbitrarily  (and  will  be  so  used  throughout)  to  indicate  a sub- 
merged gravel  bar  as  distinguished  from  (Abst.,  p ) the 

larger  and  more  sandy  bars  which  during  low  water  assume 
almost  the  ])roportion  of  islands. 

“2.  Acker’s  Island  (Sketch  No.  2)— a gravel  reef  makes 
from  the  head  of  the  island  toward  the  right  bank,  leaving  a 


very  narrow  and  (n-()()k(3d  (‘liannel.  The  two  lieavy  dots  indi- 
(‘ate  a snag-  and  ro('ks  wliieli  slionld  l)e  removed.  Tlie  left 
('lmt(‘  shoidd  ])e  closed, 

‘'Ackley  Bars — The  rivei*  is  here  divided  into  two  chutes 
by  hai's,  and  thei'e  are  rocks  in  the  channel  near  the  foot  of 
the  bars.  The  left  chute  should  be  closed  by  a dam  and  the 
rocks  removed. 

“4.  Bluff  Rapids  (Sketch  No.  8) — The  river  is  here  di- 
vided into  two  cliutes  by  Gould  Island,  and  there  are  a few 
rocks  near  the  bead  of  the  channel  or  right  chute.  The  left 
cliute  should  be  closed  and  the  rocks  removed. 

“5.  Kipp’s  Rapids — Broad,  shallow,  and  full  of  rocks. 
Water  very  swift.  A good  channel  should  be  made  by  a re- 
moval of  some  of  the  rocks. 

“().  Eagle  Reef  (Sketch  No.  4) — The  channel  here  is  very 
narrow  and  crosses  the  rocks  as  shown  in  the  sketch.  The 
chute  A closes  of  itself  during  low  water.  Some  of  the  rocks 
should  be  removed. 

“7.  Hole  in  the  Wall — At  Hole  in  the  Wall  the  river  is  di- 
vided into  different  chutes  by  three  bars.  The  water  is  shal- 
low, and  an  increase  of  depth  should  be  obtained  by  closing 
some  of  the  chutes. 

“8.  McKnight’s  Bars — Here  the  channel  is  to  the  left  of 
the  bars;  is  very  narrow,  and  contains  rocks  which  should  be 
removed. 

“9.  Rapids  half  a mile  below  McKnight’s  Bars  (Sketch 
No.  5) — The  river  at  this  point  is  obstructed  by  two  reefs  of 
boulders,  as  shown  in  the  sketch.  Rocks  should  be  removed 
from  a point  of  each  of  these  reefs  so  as  to  straighten  the 
channel. 

“10.  Double  Islands — At  the  Double  Islands,  just  below 
the  Niches,  the  river  was  divided  into  two  chutes,  the  ‘suck’ 
being  to  the  right.  Boulders  lie  across  the  channel  at  the  head 
of  the  islands,  running  obliauely  up  stream  toward  the  right 
bank.  These  boulders  should  be  removed. 

“11.  Pablost  Rapids — The  Pablost  Rapids  commence  at 
Point  of  Rocks,  and  are  quite  long  and  broad.  There  is  a suffi- 
cient depth  of  water,  but  the  channel  is  filled  with  boulders. 
A free  channel  should  be  made  by  the  removal  of  some  of  the 
boulders. 

“12.  Holmes’s  Rapids  (Sketch  No.  6) — These  rapids  com- 
mencing above  Birch  Creek,  are  over  a mile  in  length.  The 
water  is  very  swift,  and  there  are  a number  of  boulders  in  the 
channel.  Boats  cannot  pass  these  rapids  during  low  water  on 
account  of  the  boulders.  A clear  channel  should  be  made  by 
removing  some  of  thein.  (Abst.,  p.  1194.) 

“18.  Lone  Rock  Rapids  — Here  the  river  is  divided  into  two 
chutes  by  a very  long,  narrow  l)ar  which  runs  up  close  to  the 


587 


1‘iglit  bank,  leaving-  a narrow  but  de(‘[)  eliannei,  vvbieb,  how- 
ever, has  isitnated  in  it  a large  i-oek  some  .12  feet  in  diameter, 
and  wJiic*b  (‘annot  be  passed  in  low  water.  Tlie  i-emoval  of 
this  roek  would  make  a ehaniiel  a good  and  safe  one. 

“14.  Ilig  llonlder — This  boulder  ])i-ojeets  about  two  feet 
above  low  water,  and  lias  damaged  several  lioats.  It  should  be 
removed. 

“15.  Gallatin  Kapids — The  obstruction  at  this  point  con- 
sists of  a broad  diagonal  reef  of  boulders.  It  is  difficult  for 
even  a Mackinac  to  pass  without  hitting.  A channel  should 
be  made  here  by  removing  boulders. 

“16.  Bear’s  Rapids — At  this  point  there  is  a bad  reef  of 
boulders  which  cannot  be  passed  by  steamboats  during  low 
water.  A channel  should  be  made  by  removing  boulders. 

^‘17.  Dauphin’s  Rapids — At  a small  island  above  the  rapids 
there  are  a fetv  rocks  in  the  channel  which  should  be  removed. 
The  work  on  the  Rapids  themselves  should  be  continued  and 
finished.  For  a distance  of  about  eight  miles  below  the  foot 
of  the  Rapids  proper  the  channel  is  obstructed  at  various 
places  by  rocks  which  should  be  removed. 

‘M8.  Magpie  Rapids — The  removal  of  rocks  is  all  that  is 
required  here. 

^‘19.  Bird’s  Rapids — These  ra])ids  are  caused  by  a rocky 
reef,  which  extends  out  from  the  right  bank.  There  is  plenty 
of  water,  but  the  channel  is  only  about  twenty  feet  wide  at 
low  water  and  should  be  widened  by  the  removal  of  some  of 
the  rocks. 

“20.  Sturgeon  Islaud — There  is  ])lenty  of  water  in  the 
channel,  but  at  the  head  of  the  island  there  is  a boat  ^suck’ 
into  the  left  chute  and  the  boats  are  someiimes  drawn  over 
onto  the  bar.  This  can  l)e  prevented  by  closing  the  left  chute 
with  a dam. 

“21.  Snake  Point — The  lateral  ('hute  here  should  be  closed 
by  a dam. 

“22.  Cow  Island — The  dam  closing  the  middle  chute  and 
marked  on  the  map  ^Proi)osed  dam,’  should  be  built  and  the 
upper  one  should  be  finished.  There  should  also  be  a short 
spur  at  the  foot  of  the  islands.  (Ahst.,  p.  1195.) 

“23.  Grand  Islands  (Sketch  No.  8) — The  difficulties  at  this 
point  are  caused  by  two  gravel  reefs,  one  at  the  head  and  the 
other  at  the  foot  of  the  island.  The  water  on  these  reefs  is 
very  shoal,  being  only  twenty-one  inches  in  de])th  at  low  water 
stage.  All  the  lateral  chutes  should  be  (hosed  by  dams,  and  it 
will  probably  he  found  necessary  to  rake  the  bars  and  build 
wing  dams  to  raise  the  water  on  the  reefs. 

“24.  Two  Calf  Islands  (Sketch  No.  7)  — At  this  point  the 
lateral  chutes  should  he  closed  by  dams.”  (Ahst.,  pp.  1195-6.) 


r)cS8 

On  page  1)99  is  tlie  report  of  Air.  K^teveiis,  the  assistant  en- 
gineer : 

‘‘Dauphin’s  liapids  are  caused  by  an  excessive  fall  and  an 
unusual  widening  of  the  river.  There  is  no  navigable  three- 
foot  channel  clear  of  rocks  for  a distance  of  3,100  feet.  The 
lower  part  of  the  rapids  is  divided  by  a gravel  bar,  2,000  feet 
long,  300  feet  wide,  projecting  about  2.5  feet  above  low  water. 
The  main  channel  assumes  nearly  the  shape  of  the  left  bank. 
The  chute  to  the  right  of  the  bar  is  used  by  boats  during  high 
water.  In  i)laces  the  bottom  is  paved  with  boulders  varying  in 
size  from  six  cubic  inches  to  three  cubic  yards ; these  are  often 
found  in  groups,  one  or  more  large  rocks  forming  the  nucleus 

about  which  the  others  gather  and  (Abst.,  p ) take  their 

l)laces  in  the  most  compact  form.  Again  it  is  of  coarse  gravel, 
studded  Avith  boulders  buried  deep,  often  reaching  through  to 
. the  sub-soil  of  clay. 

“The  low  water  discharge  of  the  river  at  Dauphin’s  Eapids 
is  11,062  cubic  feet  per  second;  of  this  5,047  cubic  feet  per 
second  flows  to  the  right  of  the  bar. 

“The  surface-rate  of  current  at  low  water  in  the  main  chan- 
nel is  3.2  miles  per  hour;  at  a medium  high  stage  it  is  4.3  miles 
per  hour.  Only  the  better  boats  upon  the  river  can  stem  it 
AAuthout  the  use  of  a line. 

“The  average  fall  for  3,200  feet  is  at  the  rate  of  8.9  feet 
per  mile,  and  for  1,000  feet  of  this  distance  it  is  11.42  feet 
per  mile.  The  slow  rate  of  the  current  compared  with  the 
great  fall  can  be  accounted  for  by  the  fact  of  the  shoal  water 
and  the  presence  of  so  many  boulders. 

“Had  the  work  been  finished  af  Dauphin’s  (fhis  being  the 
worst  place  on  the  river),  nearly  all  of  next  year’s  freight 
could  liaAm  been  carried  through  to  Benton  by  river.  As  it 
now  is,  it  will  be  necessary  to  wait  for  low  water  for  the  com- 
pletion of  the  work,  and  freight  taken  up  river  during  the 
latter  part  of  the  season  will  have  to  be  unloaded  below  as 
formerly  and  hauled  over  land. 

“I  went  to  Cow  Island  the  28th  of  September.  The  river 
here  is  divided  by  two  islands,  separated  by  a narrow  chute. 
About  two-thirds  of  the  water  passes  down  the  main  channel 
to  the  left.  From  the  conformation  of  the  river  and  its  banks 
the  main  channel  should  be  along  the  right  bank.  This  channel 
is  Yery  narrow,  and  in  places  rocky  and  swift.  The  main  chan- 
nel to  the  left  is  obsfructed  by  two  coarse  grawel  bars  and  by 
a few  rocks.  The  fall  for  a distance  of  6,000  feet  is  at  the 
rate  of  5.16  feet  per  mile;  the  rate  of  the  current  is  2.7  miles 
per  hour.  The  improAmments  proposed  were  to  remoA^e  the 
rocks  in  the  main  channel  and  to  close  the  two  island  chutes 
hx  low  water  dams.  Dams  to  be  of  boulders.”  (Abst.,  p. 
1196.) 


580 


The  Allegheny  Kiver. 

Captain  Mason  for  the  defense: 

(j).  l)o  yon  know  any  river  that  is  navigated,  Captain,  where 
they  have  not  locks  and  dams  somewhere  along  the  river? 

A.  Yes,  sir;  the  Cumberland  and  Tennessee  Kivers,  and 
the  Wabash. 

Q.  You  say  they  have  no  locks  and  dams  in  those  rivers? 

A.  No,  sir;  not  in  the  Cumberland  and  Tennessee,  also  the 
Allegheny  Kiver. 

Q.  The  Allegheny? 

A.  Yes,  sir;  no  locks  and  dams  on  the  Allegheny. 

Q.  I am  not  sure  that  I rightly  understood  you,  did  you 
say  there  were  or  were  not  locks  and  dams  in  the  Allegheny  ? 

A.  There  is  none  on  the  Allegheny  Eiver. 

Q.  None  on  the  Allegheny? 

A.  No,  sir. 

****** 

Q.  And  what  was  the  other  river, — the  Allegheny  Eiver, — 
you  are  sure  that  therfe  is  no  locks  or  dams  on  the  Allegheny? 

A.  There  is  none. 

Q.  How  long  since  you  have  been  up  that  river? 

A.  I never  was  up  it, — only  to  cross  it  at  Pittsburg. 

Q.  Then  your  knowledge  of  that  river  is  simply  what  you 
have  heard  in  a general  way,  I suppose. 

A.  Associating  at  Pittsburg  with  men  who  steamboated 
up  there. 

That  was  40  years  ago.  (Trans.,  4229-31.) 

^^Dam  at  Herr  Island,  Allegheny  Eiver,  Near  Pittsburg, 

Pennsylvania,  U.  S.  Eng’r  Eep.,  1895,  pp.  2410-12;  Abst.,  p. 

1630. 

. ‘^The  object  of  this  dam  is  to  begin  a system  of  slack-water 
navigation  on  the  Allegheny  Eiver  and  enlarge  the  harbor 
room  at  Pittsburg  to  the  extent  of  the  pool  formed  by  the 
dam. 

‘^The  original  project  was  for  a fixed  dam,  but  in  com- 
pliance with  the  request  of  the  authorities  of  Pittsburg  and 
Allegheny  City,  the  Secretary  of  War  has  ordered  that  the 
dam  at  Herr  Island  be  made  a movable  one.  This  change  in 
design  necessitated  a corresponding  change  in  the  estimated 
cost  of  the  work.  The  estimated  cost  df  the  work  under  the 


^'During  the  past  fiscal  year,  the  plans  for  this  work  were 


approved  duly  10,  180-1-,  and  the  puinpiii^  out  of  the  cofter-dam 
('ouuu(‘ue(Ml  duly  7,  1804.  The  result  is  shown  in  the  follow- 
ing (‘xtra('t  from  the  projeet  sul)mitted  under  modified  y)lan 
of  .\ugust  27,  1804. 

****** 

‘‘There  are  some  important  advantages  resulting  from  thi.s 
type  of  foundation.  The  uneertainties  of  sheet  piling  are 
re])la(‘ed  ])y  the  known  (pialities  of  masonry,  resting  upon  a 
foundation  ked  that  is  open  to  inspection.  Tn  the  first 
design,  the  expensive  concrete  floor  has  keen  minimized 
in  thickness  so  as  to  produce  a rupturing  strain  under 
possible  conditions  of  navigation,  and  to  ])revent  the  pumping 
out  of  tlie  lock  chamker  while  the  Herr  Island  Ham  is  up. 
With  the  present  design  there  is  no  rupturing  strain  on  the 
floor,  and  the  lock  chamker  can  ke  pumped  out  at  any  stage 
of  water  that  the  lock  walls  will  keep  out.’’ 

How  mistaken  Captain  Mason  was  is  shown  ky  the  above  Govern- 
ment Engineer’s  report  of  1895,  pp.  2410-11-12  (Akst.,  p.  1630),  and 
the  profile  and  map  of  the  Allegheny  accompanying  it  (Akst., 
1951). 

Said  Profile  is  shown  on  opposite  page. 

The  testimony  contra  was  simplv  reckless  swearing. 

The  man  leaves  the  train  at  Joliet  in  the  morning,  rides  by 
carriage  16  miles  to  the  dam  site,  then  six  miles  to  Minooka; 
then  ky  train  51  miles  to  Chicago,  which  he  reaches  at  10  o’clock 
A.  M.,  and  before  noon  he  has  proved  that  the  Hes  Plaines  is  not 
navigable;  and  that  the  Tennessee,  Cumberland  and  Allegheny 
nre  navigable  streams  without  locks  and  dams. 

The  facts  are  just  the  reverse.  The  Hes  Plaines  is  navigable, 
although  its  navigation  will  ke  improved  ky  locks  and  dams;  and 
not  a river  was  to  be  found  in  the  country  ky  their  best  expert 
where  navigation  is  carried  on,  which  had  not  received  the  benefit 
of  improvement  ky  locks,  dams,  or  similar  works. 

The  Mississippi,  the  Missouri,  the  Ohio,  the  Tennessee,  the  Cum- 
berland, the  Allegheny,  the  IVakash,  the  Columbia,  the  Snake,  the 
Fox,  the  Illinois — all  have  locks  and  dams.  lYithout  them  none 
of  these  streams  could  ke  navigated  continuously  without  the  great- 
est difficulty  and  without  encountering  numerous  obstructions; 
many  of  them  impassable  places  where  land  carriages — portages, — 
become  necessary. 


' , ' '' 


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'./•A 


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^111’:  San(jam()n,- 


LiNCOI.N  and  NAVKiATION. 


51): 


■ > 


TIk'  Saiii>-am()ii  is  tliiis  described  in  Pe(*k’s  (j|azetle(‘i-  of  Illinois 
n lcS:U: 


''  Saiujiunon  Rivet',  a prominent  l)raneli  of  the  Illinois.  It 
I'ises  in  (diani})aign  Ck)nnty,  in  the  most  elevated  region  of 
that  portion  of  the  State,  and  near  the  liead  waters  of  the 
two  Vermilions  and  tlie  Kaskaskia  liivers.  It  waters  Sanga- 
mon and  i\Iaeon  Comities,  and  parts  of  Tazewell,  Me  Lean. 
Montgomery,  Shelby,  and  Champaign  Counties.  Its  general 
eonrse  is  northwesterly.  Besides  a number  of  smaller  streams, 
notieed  in  their  al])ha])etical  order  as  Clary’s,  Eoek,  IBehland, 
Prairie,  Spring,  Lick,  Sugar,  Horse,  and  Brush  Creeks,  on 
the  south  side,  and  Crane,  Cantrill’s  Fancy,  Wolf  Creeks  and 
other  streams  on  the  north  side  its  three  principal  heads  are 
Salt  Creek,  North  fork,  and  South  fork. 

“Salt  Creek  rises  in  McLean  County,  twenty  Two  north, 
ranges  four  and  five  east,  and  runs  a westerly  course  through 
the  northwest  corner  of  Macon  into  Sangamon  County,  where, 
after  receiving  Kickapoo  and  Sugar  Creeks,  and  several 
smaller  ones,  it  enters  the  Sangamon  Kiver  in  the  northwest 
})art  of  townshi]!  nineteen  north,  range  six  west.  Its  tvx> 
princii)al  heads  are  called  the  North  fork  of  Salt  Creek,  and 
Lake  fork  of  Salt  Creek. 

“North  fork,  which  may  l)e  regarded  as  the  main  stream, 
rises  in  (diam])aign  C’ounty,  near  the  heads  of  the  Vermilion 
Itiver  of  the  Illinois,  the  Vermilion  oT  the  M^abash,  and  the 
Kaskaskia  in  twenty-four  north,  seven  east,  in  a small  lake. 
It  rims  southwesterly  through  Macon,  then  south,  then  west 
into  Sangamon  (’ounty,  where  it  receives  South  fork  and 
Salt  Creek. 

“The  South  fork  of  Sangamon  rises  by  several  braiuhies, 
in  the  northwestern  ])art  of  Shelby,  and  the  northeastei’ii 
})art  of  Montgomery  C/Ounties,  runs  a southeaster]!  course, 
nnd  forms  a junction  with  the  Nortli  fork  in  sixteen  north, 
four  west,  seven  miles  east  from  Springfield. 

“Sangamon  Biver  and  its  branches  flow  thinugh  one  of 
the  richest  and  most  delightful  portions  of  the  Great  AVest. 
(V)m])laints  are  made  of  the  extent  of  the  ])rairies,  l)ut  this 
offers  no  serious  inconvenience  for  the  present.  These 
l)rairies  for  many  years  will  afford  range  foi*  thousands  of 
cattle-  The  general  as])ect  of  the  country  on  the  Sangamon  is 
level,  yet  it  is  sufficiently  undulating  to  permit  tlie  watei*  to 
escape  to  the  creeks.  It  will  soon  constitute  one  of  the  richest 
agricultural  districts  in  the  United  States,  the  soil  being  of 
such  a nature  that  immense  cro])s  can  l)e  raised  with  little 
agricultural  labor. 

“The  Sangamon  is  navigal)Ie  for  steamboats  of  the  smaller 


('hiss  to  tli(‘  jiuictioii  ()j‘  tli(‘  North  niid  South  forks,  and,  with 
a litll(‘  labor  in  (-leai'ing  out  tlie  diift  wood,  (aich  iJi'incipal 
fork  may  ho  navigated  with  Hat  boats  for  a long  distarn^o.  In 
tho  spring  of  iSdl!  a stoainhoat  of  tho  lai'gor  class  arrived 
within  tiv(‘  miles  of  Springti(hd,  and  dis('liarged  its  eargo. 
At  a small  ex])ense  in  cleai'ing  out  the  logs,  and  ('utting  the 
stooping  trees,  this  river  would  he  navigal)le  for  steaml)oats 
half  the  year.  From  a ])end  neai*  the  month  of  (dary’s  Creek, 
titty  miles  above  the  moutli  of  tlie  Sangamon,  the  waters  find 
a ('liannel  through  the  low  grounds  and  sloughs  to  the  vicinity 
of  fjoardstown,  so  tliat  keel  boats  ('an  })ass  in  this  dii-ection 
into  the  Sangamon.  It  is  thought  that  with  small  ex])ense 
a communication  might  he  opened  in  this  direction.  Some  in- 
cipient  measures  wei'e  adopted  by  the  legislature  for  improv- 
ing tlie  navigation  of  tliis  nol)le  river,  but  nothing  effectual 
has  l)een  done. 

“When  tlie  resources  of  the  State  liecome  more  ample 
there  is  no  doubt  but  this  important  outlet  for  its  agricultural 
wealth  will  receive  a share  of  attention.” 

(fleck’s  Gazetteer  of  Illinois,  pp.  326-328.) 

On  page  258  the  same  work  states  of  the  Illinois  that 

“It  curves  to  the  south  and  then  to  the  southwest  receiving 
a number  of  tributaries,  the  largest  of  which  are  the  Spoon 
and  Sangamon  Rivers.” 

The  Sangamon  was  declared  a navigable  stream  by  A.ct  approved 
December  26,  1822.  (L.  1822-3,  p.  81.) 

The  Sangamon  County  Commissioners  were  authorized  to  ex- 
])end  certain  funds  in  improving  the  navigation  of  the  river  by 
removing  obstructions  therefrom,  by  Act -approved  March  I,  1833. 
(L.  1833,  p.  126.) 

In  1835  this  court,  in  ClarJc  v.  Lahe,  1 Scam.,  329,  enforced  this 
act.  The  opinion  is  as  follows: 

“Lockwood,  Justice,  delivered  the  o])mioii  of  the  Court: 

“This  was  an  action  of  trespass  on  the  case,  brought  by 
Clark  against  Lake,  in  the  Sangamon  Circuit  Court.  The 
])laintiff  declared  against  the  defendant  for  erecting  a dam 
across  the  Sangamon  River, — which  stream  had  been  declared 
a public  highway  by  a statute  of  this  State, — whereby  the 
])laintiff  had  been  obstructed  in  the  navigation  tliereof,  while 
})roceeding  down  the  river  with  a boat  load  of  corn,  and  there- 
l)y  lost  his  said  boat  and  contents.  The  defendant  ])leaded 
not  guilty.  On  the  trial  of  the  cause,  the  ])liiintiff  gave  evi- 
dence conducing  to  ]n'ove  that  he  descended  said  river  with  a 


YX) 


boai  load  of  ('orn,  with  a siinic'Kail  tide  of  \vai(a-  to  d(‘S(‘(‘iid 
the  I'ivor  if  it  had  not  boon  obstriH'tod  by  artiticial  objcM'ls, 
and  intondinj>’  to  go  to  Nat('lioz  or  N(‘w  Orh^ans.  ddial  wlnni 
the  boat  arrived  witLdn  tliree-foiirtlis  of  a mile  of  defendant’s 
inill-dam,  he  stopped  his  boat.  That  in  eonsecpHnua*  of  tin* 
said  dam’s  impeding  the  navigation  of  tlie  said  rivei-,  tlie 
boat  could  not  ])roeeed  on  the  tri]),  and,  in  eonse(inenee  of 
being  so  stopi)ed,  the  corn  was  lost.  That  the  corn  was  worth 
cents  ])er  bushel  where  it  was  stop])ed  on  tlie  river,  and 
worth  seventy-five  cents  at  the  lower  markets.  After  the  fore- 
going evidence  was  given,  the  defendant  asked  a witness, 
‘Wliether  there  was  not  another  mill-dam  across  said  river, 
lielow  the  defendant’s  mill-dam,  erected  in  violation  of  said 
law,  which  was  higher  than  defendant’s  mill-dam;  and  whether 
said  lower  dam  would  not  have  prevented  plaintiff  from  pro- 
ceeding to  the  low^er  markets  of  Natchez  or  New  Orleans,  as 
it  was  late  in  the  season,  and  no  other  tide  might  take  place 
in  the  river  during  that  season,  even  if  the  plaintiff  could 
have  gone  over  defendant’s  mill-dam,’ — to  which  the  plaintiff’s 
counsel  objected;  but  the  Court  overruled  the  objection,  and 
permitted  the  question  to  l)e  asked,  and  the  defendant  to  prove 
that  fact  to  the  jury  by  said  witness.  To  which  opinion  and 
judgment  of  the  Court,  the  plaintiff  by  his  counsel  excepted. 

‘‘The  only  ((uestion  presented  in  this  case,  1^;^  whether  the 
Circuit  Court  erred  in  permitting  this  testimony  to  be  given 
to  the  jury. 

“It  appears  from  the  record  that  he  verdict  was  for  the 
defendant,  which  ])robably  shows  the  effect  that  this  testi- 
mony was  designed  to  have.  This  Court  cannot  conceive  what 
other  use  could  have  l)een  made  of  this  testimony  unless  it 
was  to  urge  to  the  jury,  that  if  the  ])laintiff  could  have  passed 
the  defendant’s  dam,  he  would  not  have  been  benetited  by  it, 
as  he  inevitably  would  have  been  stoi)])ed  l)y  the  dam  lower 
down  the  river.  This  mode  of  reasoning,  if  adopted,  was  not 
more  unsound  in  morals  than  in  law.  The  law  is  well  settled 
that  every  ])erson  who  erects  an  obstruction  across  a public 
highway,  is  liable  for  all  the  injuries  that  residt  from  it.  It 
is  consequently  no  excuse  that  another  obstruction  would  have 
produced  the  same  effect,  for  the  obvious  reason,  that  the 
party  injured  by  the  first  ol)struction,  has  no  cause  of  action* 
against  the  person  who  erected  the  second.  In  the  })resent 
case,  the  second  mill-dam  had  not  delayed  the  ])laintitf ; and  of 
course  he  could  not  have  sued  the  person  who  erected  it.  If 
the  plaintiff  sought  to  recover  damages  for  a greater  amount 
than  the  value  of  the  corn  and  boat,  where  the  injury  o(‘curred, 
by  showing  how  much  profits  he  had  lost  by  the  obstruction 
occasioned  by  defendant’s  mill-dam,  it  doubtless  would  have 
been  ])roper  for  the  defendant  to  show,  in  mitigation  of  dam- 


ages,  that  siu'li  j)rofits  could  never  liave  ])eeii  realized,  in  con- 
se(iuence  of  the  'ini])ossi})ility  of  tlie  boat’s  making  tlie  lower 
markets,  (X'casioned  by  obstructions  in  the  river  below  de- 
fendant’s mill-dam.  It  is  manifest,  however,  that  the  evidence 
\yas  not  offered  in  mitigation  of  damages,  because  no  such 
limitation  was  proposed  l)y  the  defendant,  nor  required  by  the 
Circuit  C\)urt.  The  true  rule  relative  to  receiving  or  rejecting 
testimony,  is, — Does  the  pro])osed  testimony  tend  to  prove 
the  issue  joined  between  the  parties?  If  the  testimony  offered 
does  not  tend  to  ]n*ove  tlie  issue,  or  is  calculated  to'  lead  the 
jury  astray,  it  ought  to  be  rejected.  This  Court  believing 
that  such  may  have  been  tlie  effect  of  the  question  asked  by 
the  defendant,  are  of  opinion  that  the  Circuit  Court  erred  in 
not  rejecting  it. 

‘^The  judgment  is  therefore  reversed  with  costs,  and  the 
cause  remanded,  with  directions  to  the  Circuit  Court  of  San- 
gamon County  to  award  a venire  cle  novo. 

^ ‘ J udfjni  eni  rev ersed.  ’ ’ 


Lincoln  and  Xavigation. 

Abraham  Lincoln  navigated  the  Sangamon,  as  is  well  known. 
In  Whitney’s  Life  of  Lincoln  the  following  descrpition  of  his  first 
trip  is  given : 

^‘Flowing  in  a sinuous  course,  generally  southwestwardly, 
through  Champaign,  Piatt,  Macon,  and  between  Christian 
and  Sangamon  Counties,  for  a hundred  miles,  then  turning 
abruptly  to  the  northwest  for  about  fifty  miles,  then  inir- 
suing  a course  due  west  until  it  finally  reaches,  and  mingles 
its  turbid  current  with  that  of  the  Illinois,  is  a river  now 
known  improperly  as  the  ‘Sangamon.’  Its  correct  name, 
given  by  the  Indians,  is  ‘Sangamo’ — pronounced  ‘Sanga- 
wair’ — and  it  was  so  called  in  Lincoln’s  early  manhood.  The 
Hanks  neighborhood  is  on  the  right  bank  of  this  river,  at  a 
point  near  to  where  its  course  is  changed  from  a southwest- 
erly to  a northwesterly  one.  It  was  in  the  river  bottom  of 
this  stream,  in  this  neighborhood,  that  Lincoln  passed  the  first 
year  of  his  manhood. 

“In  February,  1831,  one  Denton  Offutt,  a bibulous,  ‘devil- 
may-care’  sort  of  person,  a combination  of  speculator  and 
mountebank,  drifted  into  this  neighborhood,  and  casually  met 
John  Hanks,  wdio  had  somehow  achieved  a local  fame  as  a 
fiatboatman.  Offutt  proposed  to  Hanks  to  transport  a flat- 
boat  load  of  country  produce  to  New  Orleans.  Hanks  was 
not  unwilling  to  go,  but  deferred  a definite  answer  till  he 
could  consult  Lincoln  and  John  D.  Johnston,  and  ascertain  if 
they  could  be  induced  to  accompany  him. 


and  thus  it  was  that  ho  (‘ni(u*(Ml  pi’oinptly  into  a 
businoss  oii^'ai>ouioiit  with  OtTutt  by  tho  tonus  of  wliioli  OtTutt 
was  to  ))rovido  a boat  and  (*ari>()  at  tho  ('outiuonoo  of  Suii^ar 
(h’ook  and  tho  south  fork  with  tho  uiaiii  Saugaiuo,  a fow  inilos 
oast  of  tlio  thou  obseuro  and  ill-built  vitlago  of  S})riugfiold. 
This  boat  Liuoolu,  Jolin  llanks,  aud  Joliu  I).  Johnston  woro  to 
navigato  to  Now  Orloans. 

^‘In  thirty  days  henoe  the  flatl)oat  was  completed,  and  i-ode 
})roudly  on  the  bosom  of  the  river,  moored  to  the  mud  l)anks 
of  the  Sangamon — the  pioneer  of  all  water  craft  in  that  region. 

^ At  a distance  of  thirty-seven  miles  as  the  river 
runs,  on  the  19th  day  of  April,  a mill-dam  was  encountered, 
on  which  the  rude  craft,  after  passing  one-third  of  its  length, 
stuck  fast. 

‘‘In  the  exigency  thus  presented,  Lincoln  was  the  directing 
and  master  mind.  The  forward  end  of  the  boat  was  tilted  up, 
and  the  rear  end  submerged ; a smaller  boat  was  procured,  and 
part  of  the  load  transferred.  Lincoln  then  bored  a hole  in 
that  part  of  the  bottom  of  the  boat  which  projected  over  the 
dam,  and  then  rolled  some  heavy  pork  barrels  forward,  which 
gave  a pitch  to  the  boat  and  let  the  water  run  out,  after  which 
the  hole  was  stopped  up,  and,  by  a skillful  use  of  poles,  the 
vessel  was  got  over,  reloaded,  and  sent  forward  on  its  course. 

“AVhen  the  craft  reached  Beardstown,  its  odd  appearance 
and  wild-looking  crew  excited  the  derision  of  the  inhabitants, 
who  committed  the  undignified  and  inexcusable  act  of  openly 
ridiculing  them  as  they  passed.  The  venture  reached  New 

• Orleans  at  last,  probably  as  rude  a craft  with  as  awkward  a 
crew  as  ever  floated  out  of  the  wild  forest.” 

(Life  and  Works  of  Al)raham  Lincoln  by  Henry  C.  Whit- 
ney, pp.  68-9-70-1-2-3.) 

In  Miss  Tarbell’s  Life  the  next  incident  is  given  thus: 

“A  few  days  later  (1831)  he  accepted  an  offer  to  pilot  down 
the  Sangamon  and  Illinois  Livers,  as  far  as  Beardstown,  a 
flat-boat  bearing  the  family  and  goods  of  a ])ioneer  bound  for 
Texas.” 

(1.  Tarbell,  p.  61.) 

That  happened  in  1831,  and  the  dams  were  then  there,  and  were 
still  there  in  1835  when  the  court  decided  the  case  of  Clark  v.  Lake, 
1 Scam.  The  case  above  cited  is  important  as  showing  that  tho 
presence  of  such  dams  erected  at  that  early  day,  does  not  deprive 
the  stream  of  navigability. 

The  reference  to  Lincoln  leads  to  other  important  historical 


rm 


i'{‘ler(‘ii('c*s.  '^rii(‘  first  ])iil)Iic*  address  of*  Ahraliain  Lincoln  was 

d(‘livered  March  9,  \HIV2,  to  the  people  of  Sangamon  ('ounty,  as  a 
candidate  tor  the  Legislatni'e.  Among  other  tilings  he  said: 


“March  9, 


18d2. — Address  to  the 


People  oe  Sangamon 


County. 


“Fellow  citizens:  Having  liecome  a candidate  for  tlie  hon- 
oralile  office  of  one  of  your  Representatives  in  the  next  Gen- 
eral Assembly  of  this  State,  in  accordance  with  an  established 
custom  and  the  principles  of  true  Republicanism  it  becomes 
my  duty  to  make  known  to  you,  the  people  whom  I ])ropose  to 
rejiresent,  my  sentiments  with  regard  to  local  affairs. 

“Time  and  ex])erience  have  verified  to  a demonstration  the 
public  utility  of  internal  improvements.  That  the  ])oorest  and 
most  thinly  populated  countries  would  be  greatly  benefited 
by  the  opening  of  good  roads,  and  in  the  clearing  of  navigable 
streams  within  their  limits,  is  what  no  person  will  deny.  * 

A meeting  has  been  held  of  the  citizens  of  Jacksonville  and 
the  adjacent  country,  for  the  ])urpose  of  deliberating  and  in- 
(luiring  into  the  ex])ediency  of  constructing  a railroad  from 
some  eligilfie  point  on  the  Illinois  River,  through  the  town  of 
Jacksonville,  in  Morgan  County,  to  the  town  of  Springfield, 
in  Sangamon  County.  This  is,  indeed,  a very  desirable  object. 
Xo  other  improvement  that  reason  will  justify  us  in  hoping 
for  can  e(]ual  in  utility  the  railroad.  * * xhe  prohable 

cost  of  this  contemplated  railroad  is  estimated  at  $290,000; 
the  bare  statement  of  which,  in  my  opinion,  is  sufficient  to 
justify  the  belief  that  the  improvement  of  the  Sangamon 
River  is  an  object  much  better  suited  to  our  infant  resources. 

“Respecting  this  view  I think  I may  say,  without  the  fear 
of  being  contradicted,  that  its  navigation  may  he  rendered 
conipletely  practicable  as  high  as  the  mouth  of  the  South 
Fork,  or  probably  higher,  to  vessels  of  from  twenty-five  to 
thirty  tons  burden,  for  at  least  one-half  of  all  common  years, 
and  to  vessels  of  much  greater  burden  a part  of  the  time. 
From  my  peculiar  circumstances  it  is  probable  that  for  the 
last  twelve  months  I have  given  as  particular  attention  to 
the  stage  of  the  water  in  this  river  as  any  other  person  in 
the  country.  In  the  month  of  March,  1831,  in  company  with 
others,  I commenceM  the  building  of  a flat  boat  on  the  San- 
gamon, and  finished  and  took  her  out  in  the  course  of  the 
spring.  Since  that  time  I have  been  concerned  in  the  mill  at 
New  Salem.  These  circumstances  are  sufficient  evidence  that 
I have  not  been  very  inattentive  to  the  stages  of  the  water. 
The  time  at  which  we  crossed  the  mill-dam  being  in  the  last 
days  of  April,  the  water  was  lower  than  it  had  been  since 
the  breaking  of  winter  in  February,  or  than  it  was  for  several 


^veeks  al'U'r.  The  .|)i’ineii)al  (liC(i(*ulli(‘s  we  (Mi('()uiil(;r(Ml  in 
deseeiuliii^’  the  river  were  from  th(‘  driftcMl  lirnl)(ir,  whi(!li 
ohstriietioiis  all  know  are  not  diriicnilt  to  reinovecJ.  Knowing- 
almost  preeisely  the  height  of  water  at  that  time,  1 l)(hi(W(} 
J am  safe  in  saying  tliat  it  has  as  often  been  higher  as  low(m 
since. 

“From  this  view  of  tlie  subject  it  appears  that  my  calcula- 
tions with  regard  to  the  navigation  of  the  Sangamon  cannot 
but  be  founded  in  reason;  but,  wliatever  may  be  its  natural 
advantages,  certain  it  is  that  it  never  can  l)e  practically  use- 
ful to  any  great  extent  ivitliout  being  greatly  improved  by 
art.  The  drifted  timber,  as  I have  l)efore  mentioned,  is  the 
most  formidable  barrier  to  this  object.  Of  all  parts  of  this 
river,  none  will  require  so  much  labor  in  proportion  to  make 
it  navigable  as  the  last  thirty  or  thirty-hve  miles;  and  going 
with  the  meanderings  of  the  channel,  when  we  are  this  dis- 
tance above  its  mouth  we  are  only  between  twelve  and  eigh- 
teen miles  above  Beardstown  in  something  near  a straight 
direction;  and  this  route  is  u])on  such  low  ground  as  to  re- 
tain water  in  many  places  during  the  season,  and  in  all  parts 
such  as  to  draw  two-thirds  or  three-fourths  of  the  river 
water  at  all  high  stages. 

‘‘This  route  is  on  prairie- land  the  whole  distance,  so  that 
it  a])])ears  to  me,  by  removing  the  turf  a sufficient  width, 
and  damming  u])  the  old  channel,  the  whole  river  in  a short 
time  would  wash  its  way  through,  thereby  curtailing  the  dis- 
tance and  increasing  the  velocity  of  the  current  very  consid- 
erably, while  there  would  be  no  timber  on  the  banks  to  ob- 
struct its  navigation  in  future;  and  being  nearly  straight, 
the  timber  which  might  float  in  at  the  head  would  be  apt  to 
go  clear  through.  There  are  also  many  |)laces  above  this 
where  the  river,  in  its  zigzag  course,  forms  such  com])Iete 
])eninsulas  as  to  be  easier  to  cut  at  the  necks  than  to  remove 
the  obstructions  from  the  bends,  which,  if  done,  would  also 
lessen  the  distance. 

“What  the  cost  of  this  work  would  l)e,  T am  unable  to  say. 
It  is  probable,  however,  tliat  it  would  not  be  greater  than 
is  common  to  streams  of  the  same  length.  Finally,  T believe 
the  improvement  of  the  Sangamon  Biver  to  be  vastly  im- 
portant and  higlily  desirable  to  the  people  of  the  countrv; 
and,  if  elected,  any  measure  in  the  legislature  having  this  for 
its  object,  which  may  appear  judicious,  will  meet  my  a])- 
probation  and  receive  my  support.” 

(“Abraham  Lincoln  Fomplete  Works,”  Vok  T,  ])}).  1, 

2,  3.) 


(j()() 


The  (‘vcMil.s  wJiieli  iinniediately  followed  are  thus  narrated: 

“V'ery  soon  after  Lineoln  had  distributed  liis  iiand-bilJs, 
enlhusiasin  on  the  subject  of  the  opening  of  the  Sangamon 
1‘ose  to  a fever.  The  ‘Talisman’  actually  came  up  the  river; 
scores  of  men  went  to  Beardstown  to  meet  her,  among  them 
Lincoln,  of  course,  and  to  him  was  given  the  honor  of  piloting 
her — an  honor  which  made  him  remembered  by  many  a man 
who  saw  him  that  day  for  the  first  time.  * * * 

long  hurrah  from  Beardstown  to  Springfield,  and  foremost 
in  the  jubilation  was  Lincoln,  tlie  pilot.  The  ‘Talisman’  went 
to  the  point  on  the  river  nearest  to  Springfield,  and  there  tied 
up  for  a week.  When  she  went  back  Lincoln  again  had  the 
conspicuous  position  of  pilot.  The  notoriety  this  gave  him 
was  probably  quite  as  valuable  politically,  as  the  forty  dollars 
he  received  for  his  service  was  financially.” 

(I.  Tarbell’s  Life  of  Lincoln,  p.  72.) 

Mr  Lincoln’s  interest  in  navigation  was  of  the  most  practical 
sort  and  it  remained  with  him  to  the  end  of  his  life. 

July  5,  1847,  the  first  National  Eiver  and  Harbor  Convention 
that  ever  convened  in  this  country  was  held  in  Chicago.  Dele- 
gates from  nineteen  States  were  present, — among  them  David 
Dudley  Field  and  Horace  Greeley  of  New  York. 

“In  July,  1846,  a bill  for  the  improvement  of  harbors  and' 
the  navigation  of  rivers  passed  both  houses  of  congress. 
President  James  Polk  vetoed  the  bill  August  3.  Among  the 
items  in  this  bill  were  $15,000  for  Buffalo  harbor,  $40,000 
for  Erie  harbor,  $20,000  for  Cleveland  harbor,  $80,000  for 
Racine,  Little  Fort,  Southport,  Milwaukee  and  Chicago  dredge 
boat.  President  Polk  said:  ‘It  would  seem  the  dictate  of 
wisdom  under  such  circumstances  to  husband  our  means  and 

not  waste  them  on  comparatively  unimportant  objects.’ 

* * 

“At  this  time  the  following  vessels  navigated  the  lakes 
above  the  falls  of  Niagara:  Steamboats  52,  tonnage  29,500; 
propellers  8,  tonnage  2,500;  brigs  50,  tonnage  11,000;  schoon- 
ers 270,  tonnage  42,000.  Total  boats,  380;  total  tonnage, 
76,000.  The  cost  of  the  construction  of  these  vessels  was 
$4,600,000. 

“Polk’s  veto  aroused  the  people  of  the  north  and  north- 
west, and  Monday,  July  5,  1847,  pursuant  to  a widely  ad- 
vertised call,  a convention  was  held  in  Chicago  at  which  dele- 
gates from  nineteen  states  were  present.  Horace  Greeley 
was  present,  representing  the  New  York  Tribune.  In  an  ar- 
ticle published  in  that  paper  Saturday,  July  17,  1847,  he  said: 
‘A  judicious  estimate  makes  the  number  present  today  20,000 


nuMi,  of  whom  10, ()()()  iwv  li(‘i'(‘  as  mcanhcfs  oT  tla*  (‘orivcai- 
iioii.’  ” 

(ijiiK'olii  on  Waterways,  by  W.  A.  Meeso,  j)}).  24,  25.) 

All*.  Jjiiieolii  was  a delegate  to  tliis  convention. 

‘‘In  the  forenoon  David  Dudley  Field  of  Xew  York  had 
spoken  against  the  right  of  the  federal  government  to  im- 
prove rivers  and  harbors,  and  Lincoln  was  called  to  answer 
him.  ^ 

“The  New  York  Semi-Weekly- Tribune  have  a fall  account 
of  the  convention  and  from  its  report  of  July  17,  1847,  we 
may  learn  how  Lincoln  at  this  time  impressed  the  great 
editor.  In  his  afternoon  report  of  July  6,  Mr.  Greeley  said: 

“ ‘In  the  afternoon  Hon.  Abraham  Lincoln,  a tall  speci- 
men of  an  Illinoisan,  just  elected  to  Congress  from  the  only 
whig  district  in  the  state,  was  called  out  and  spoke  briefly 
and  happily  in  reply  to  Mr.  Field.’  * * * 

“In  May,  1846,  Lincoln  had  been  nominated  by  the  whigs 
for  congress.  * * * Lincoln  was  elected  by  over  1,500 

majority.  * * * 

“Lincoln  voted  for  the  following  resolution  December  20, 
1847: 

“Eesolved,  That  if  in  the  judgment  of  congress  it  be  neces- 
sary to  improve  the  navigation  of  a river  to  expedite  and 
render  secure  the  movements  of  our  army  and  save  from 
delay  and  loss,  our  arms  and  munitions  of  war,  congress  has 
the  power  to  improve  such  river.” 

(Id.,  pp.  26-7-8.) 

June  20,  1848,  Mr.  Lincoln  spoke  in  Congress  in  committee  of 
the  whole  and  announced  his  subject  thus: 

“I  therefore  state,  in  advance,  that  my  object  in  taking  the 
floor  is  to  make  a speech  on  the  General  Subject  of  Internal 
Improvements.”  (Id.,  p.  29.) 

Of  the  general  good  from  the  improvement  of  rivers  in  locali- 
ties he  said : 

“*  * * The  driving  a pirate  from  the  track  of  com- 

merce on  the  broad  ocean  and  the  removing  a snag  from 
its  more  narrow  path  in  the  Mississippi  River,  cannot,  I think, 
be  distinguished  in  principle.  Each  is  done  to  save  life 
and  property,  and  for  nothng  else.  The  navy,  then,  is  the 
most  general  in  its  benefits  of  all  this  class  of  objects;  and  yet 
even  the  navy  is  of  some  peculiar  advantage  to  Charleston, 
Baltimore,  Philadelphia,  New  York  and  Boston,  beyond  what 
it  is  to  the  interior  towns  of  Illinois. 

“The  next  most  general  object  I can  think  of,  would  be 


iini)i-()veineiits  on  the  M ississi|)))i  Uiver  and  its  tributaries, 
''riiey  toueh  tliirteen  of  our  stales — Pennsylvania,  Virginia, 
Kentneky,  Tennessee,  Mississippi,  Louisiana,  Arkansas,  Mis- 
soui'i,  Illinois,  Indiana,  Ohio,  Wis('onsin  and  Iowa.  Now, 
I suppos(‘  it  will  n.ot  be  denied,  that  these  thirteen  states 
are  a little  more  interested  in  inii)i‘ovenients  on  that  great 
river  than  are  tlie  remaining  seventeen.  Tliese  instances  of 
tlie  navy  and  tlie  Mississippi  'River  sliow  clearly  that  there 
is  sonietliing  of  local  advantage  in  tlie  most  general  objects.” 
(Id.,  p.  Tk) 

Of  the  canal  he  said: 

‘bBut  the  convei'se  is  also  true,  nothing  is  so  local  as  not 
to  be  of  some  geneial  benefit.  Take  for  instance,  the  Illi- 
nois and  Micliigan  Oanal.  Considered  apart  from  its  effects 
it  is  ])erfectly  local.  livery  inch  of  it  is  within  the  State  of 
Illinois.  That  canal  Avas  first  0])ened  for  business  last  April. 
In  a very  few  days  we  were  all  gratified  to  learn,  among 
other  things,  that  sugar  had  been  carried  from  New  Orleans, 
through  the  canal,  to  Buffalo  in  New  York.  This  sugar  took 
this  route  doubtless  because  it  Avas  cheaper  than  the  old 
route.  Supposing  the  benefit  in  the  reduction  of  the  cost 
of  carriage  to  be  shared  betAveen  seller  and  buyer,  the  result 
is  that  the  New  Orleans  merchant  sold  his  sugar  a little 
dearer,  and  the  ])eop!e  of  Buffalo  sAveetened  their  coffee  a 
little  cheaper  tlian  before;  a l)enefit  resulting  from  the  canal, 
not  to  Illinois  Avhere  tlie  canal  is,  but  to  Louisiana  and  New 
York,  wliere  it  is  not.  * * 

“iMr.  Chairman,  the  ])resident  seems  to  think  that  enough 
may  be  done  in  the  way  of  im])roA"ements  by  means  of  tonnage 
duties,  under  state  authority,  with  the  consent  of  the  general 
gOA^ernment.  * * * How  could  we  make  any  entirely  new 

improA^ement  by  means  of  tonnage  duties!  Hoav  make  a road, 
a canal  or  clear  a greatly  obstructed  river?  The  idea  that 
we  could  iuA'olA^es  the  same  absurdity  of  the  Irish  bull  about 
the  ncAv  boots:  H shall  niver  git  ’em  on,’  says  Patrick,  Hill 
I wear  ’em  a day  or  two,  and  stretch  ’em  a little.’  We 
shall  never  make  a canal  by  .tonnage  duties  until  it  shall  al- 
ready have  been  made  awhile  so  the  tonnage  can  get  into  it.” 
(Id.,  pp.  34,  38  and  39.) 

In  1848  Mr.  Lincoln  returned  from  Washington  and  the  east 
by  way  of  Niagara  Falls.  What  follows  is  thus  narrated  in 
Tarbell’s  Life  of  Lincoln,  Vol.  I,  pp.  226-228: 

‘Hn  his  trip  westward  to  Springfield  from  Niagara  there 
occurred  an  incident  which  started  Lincoln’s  mind  on  a new 
line  of  thought,  one  which  all  that  fall  divided  it  with  pol- 
itics. It  happened  that  the  boat  by  which  he  made  ])art  of  the 


trip  stranded  in  shallow  wat(‘r.  d(‘vi('(is  (auploy(‘(!  io 

float  her,  interested  Ijin(H)ln  niiK'h.  I hi  no  doul)t  r(i(iall(i(J 
the  days  when  on  the  Ohio,  the  Mississippi,  and  tlui  San,i^a- 
nion  he  liad  seen  liis  own  or  liis  neighhor’s  boats  stuck  on  a 
sand-bar  for  hours,  even  days.  Was  there  no  way  tliat  these 
vexatious  delays  could  be  presented  in  shallow  streams!  lie 
set  himself  resolutely  at  the  task  of  inventing  a practical 
device  for  getting  boats  over  slioals.  When  he  ’ reached 

Springfield  he  began  to  build  a model  representing  his  idea. 

^ ^ ^ 

‘‘WHien  Lincoln  returned  to  Washington  he  took  the  model 
with  him,  and  through  Mr.  Z.  C.  Rol)bins,  a lawyer  of  AVash- 
ington,  secured  a patent.  ‘He  walked  into  my  office  one  morn- 
ing with  a model  of  a western  steamboat  under  his  arm,’ 
says  Mr.  Robbins.  ‘After  a friendly  greeting  he  placed  his 
model  on  my  office-table  and  proceeding  to  explain  the  prin- 
ciples embodied  therein  that  he  believed  to  be  his  own  in- 
vention, and  which,  if  new,  he  desired  to  secure  by  letters- 
patent.  During  my  former  residence  in  St.  Louis,  I had  made 
myself  thoroughly  familiar  with  everything  appertaining  to 
the  construction  and  equipment  of  the  flat-bottomed  steam- 
boats that  were  adapted  to  the  shallow  rivers  of  our  western 
and  southern  States,  and  therefore,  I was  abffi  speedily  to 
come  to  the  conclusion  that  Mr.  Lincoln’s  proposed  improve- 
ment of  that  class  of  vessels  was  new  and  patentable,  and  I so 
informed  him.’  Thereupon  he  instructed  me  to  ])re])are  the 
necessary  drawings  and  payiers  and  ])rosecute  an  a])])lication 
for  a patent  for  his  invention  at  the  TTnited  States  patent 
office.  T com})lied  with  his  instructions  and  in  due  course  of 
proceedings  procured  for  him  a patent  that  fully  covered 
all  the  distinguishing  features  of  his  im})roved  steamboat. 
The  identical  model  that  Mr.  Lincoln  brought  to  my  office  can 
now  be  seen  in  the  United  States  Patent  office.” 

A ])hotogra])h  cut  of  the  invention  itself  a])])eai-s  facing  page  (U, 
Volume  TT  of  the  same  work,  with  the  following  descri])tion  at- 
tached : 

“Model  of  Abraham  Iuncoln’s  Device  for  Liftino  Vessels 

Over  Shoals. 

“The  inscri])tion  above  this  model  in  the  Model  Hall  of  the 
Patent  Office,  reads:  ‘()4(i9,  Abraham  Lincoln,  Siiringfleld, 
Illinois.  Improvement  in  method  of  lifting  vessels  over  shoals. 
Patented  May  22,  1849.’  The  apjiaratus  consists  of  a bellows 
])laced  in  each  side  of  the  hull  of  the  craft,  just  below  the  water 
line,  and  worked  by  an  odd  but  simple  system  of  ropes  and 
pulleys.  When  the  keel  of  the  vessel  grates  against  the  sand 
or  obstruction,  the  bellows  is  filled  with  air;  and  thus,  buoyed 


rM 


ii)),  tli(‘  v(‘ssel  is  (‘X])(M‘tc(l  to  float  ov(‘i*  ilie  slioal.  TIk*  model 
is  about  eighteen  or  twenty  iiielies  loii^',  and  looks  as  if  it  liad 
been  wliittled  witli  a knife  out  of  a shingle  and  a cigar  box.” 

(LI  Lincoln’s  Complete  Works,  p.  64.) 

Clovernor  V^an  Sant  of  Minnesota,  who  appeared  as  a witness 
for  the  State,  testified  to  a somewhat  similar  construction  which 
was  actually  used  in  the  60 ’s  on  the  Chippewa  River.  He  said: 

^^The  ^ Silas  Wright^  was  built  to  operate  on  the  Chippewa 
River,  but  they  found  that  she  was  too  heavy  draft,  so  they 
built  Uvo  hulls,  put  one  on  each  side  of  her  and  rigidly  fas- 
tened them,  to  the  boat  to  bring  her  up  and  she  successfully 
navigated  the  river  there  for  years  at  a depth  of  12  or  14  or 
K)  inches  of  water,  although  she  was  originally  built  for  a 

draft  of  She  would  likely  draw  18  or  20  inches  of 

water.”  (Abst.,  p.  860.) 

(The  similarity  of  this  device  to  Lincoln’s  Patent  was  thereupon 
mentioned  as  follows  by  counsel  for  complainant)  : 

‘^That  is  somewhat  like  the  model  in  the  Patent  Office  made 
by  Abraham  Lincoln  for  lightering  boats  over  shallows.  That 
is  one  of  the  great  historical  curiosities.  He  invented  a sys- 
tem of  flat-wing  raft  wings  that  would  go  on  each  side  of  the 
steamer,  and  devised  the  idea  of  operating  bellows  that  were 
to  carry  them  over.”  (Trans.,  p.  2560.). 

Later,  in  1857,  Abraham  Lincoln  argued  in  the  United  States 
Circuit  Court  for  the  Northern  District  of  Illinois  the  great  Rock 
Island  Bridge  case.  An  account  of  it  is  given  in  Tarbell’s  Lin- 
coln, Vol.  I,  pp.  275-6,  as  follows: 

‘‘One  of  the  most  interesting  cases  involving  mechanical 
problems  which  Lincoln  ever  argued  was  that  of  the  Rock 
Island  Bridge.  It  was  not,  however,  the  calculations  he  used 
which  made  it  striking.  The  case  was  a dramatic  episode  in 
the  war  long  waged  by  the  Mississippi  against  the  plains  be- 
yond. For  decades  the  river  had  been  the  willing  burden- 
bearer  of  the  lYest.  Now,  however,  the  railroad  had  come. 
The  Rock  Island  road  had  even  dared  to  bridge  the  stream  to 
carry  away  the  traffic  which  the  river  claimed. 

“In  May,  1856,  a steamboat  struck  one  of  the  piers  of  the 
bridge,  and  was  wrecked  and  burned.  One  pier  of  the  bridge 
was  also  destroyed.  The  boat  owners  sued  the  railroad  com- 
pany. The  suit  was  the  beginning  of  the  long  and  violent 
struggle  for  commercial  supremacy  between  St.  Louis  and 
Chicago.  In  Chicago  it  was  commonly  believed  that  the  St. 
Louis  Chamber  of  Commerce  had  bribed  the  captain  of  the 


fiori 

hont  lo  run  upon  the  i)ior;  nnd  it  was  said  tlial  lal(u-,  wlion  the 
l)ridi>e  itself  was  burned,  tlie  steamers  gatliei-ed  n(;ar  and 
whist l(‘d  for  joy.  ddie  (‘aso  was  felt  to  involve  the  future 
eoui-se  of  western  (‘omuieree;  and  wlien  it  was  eall(‘d  in  Sep- 
t(Mul)ei',  1857,  at  Chicago,  peo])le  ei'owded  there  from  all  over 
the  West.  Norman  B.  Judd,  afterwards  so  prominent  in  the 
j)oliti(‘s  of  the  State,  was.  the  attorney  of  the  road,  and  he  en- 
gaged Lineoln,  among  others,  as  counsel.  Lincoln  made  an 
address  to  the  jury  which  those  wlio  remember  it  declared  to 
be  one  of  his  strongest  legal  arguments. 

‘The  two  points  relied  upon  by  the  opponents  of  the 
bridge,’  says  Judge  Blodgett  of  Chicago  ‘were: 

“ ‘First.  That  the  river  was  the  great  waterway  for  the 
commerce  of  the  valley,  and  could  not  legally  be  obstructed  by 
the  bridge. 

“ ‘Second.  That  this  particular  bridge  was  so  located  with 
reference  to  the  channel  of  the  river  at  that  point  as  to  make 
it  a peril  to  all  water  craft  navigating  the  river  and  an  unnec- 
essary obstruction  to  navigation. 

“ ‘The  first  proposition  had  not  at  that  time  been  directly 
passed  u]mn  by  the  Supreme  Court  of  the  United  States,  al- 
though the  Wheeling  Bridge  case  involved  the  ouestion;  but 
the  court  had  evaded  a decision  u]'>on  it,  by  holding  that  the 
Wheeling  Bridge  was  so  low  as  to  be  an  unnecessary  obstruc- 
tion to  the  use  of  the  river  by  steamboats.  The  discussion  of 
the  first  proposition  on  the  part  of  the  bridge  company  de- 
volved mainly  upon  Mr.  Abraham  Lincoln. 

“ ‘I  listened  with  much  interest  to  his  argument  on  this 
point,  and  while  I was  not  impressed  by  it  as  a S])ecially  elo- 
(juent  effort  (as  the  word  eloquent  is  generally  understood), 
T have  always  considered  it  as  one  of  the  ablest  efforts  T ever 
heard  from  Mr.  Lincoln  at  the  bar.  This  illustrations  were 
apt  and  forcible,  his  statements  clear  and  logical,  and  his  rea- 
sons in  favor  of  the  policy  (and  necessarily  the  right)  to  bridge 
the  river,  and  thereby  encourage  settlement  and  building  u]) 
of  the  vast  area  of  fertile  country  to  the  west  of  it,  were  broad 
and  statemanlike. 

“ ‘The  ])ith  of  this  argument  was  in  his  statement  that 
one  man  had  as  r/ood,  a right  to  cross  a river  as  another  had 
to  sail  11])  dr  down  it;  that  these  were  equal  and  mutual  rights 
which  must  be  exercised  so  as  not  to  interfere  with  each  other, 
like  the  right  to  cross  a street  or  highway  and  the  right  to 
pass  along  it.  From  this  undeniable  right  to  cross  the  river 
he  then  proceeded  to  discuss  the  means  for  crossing.  Must 
it  always  be  by  canoe  or  ferryboat?  Must  the  ])rodiicts  of 
all  the  boundless  fertile  country  lying  west  of  the  river  for 
all  time  be  compelled  to  stop  on  its  western  bank,  be  unloaded 
from  the  cars  and  loaded  upon  a boat,  and  after  the  transit 


across  tli(‘  i-ivci*,  })(‘  r(‘l()a(lcHl  into  cars  on  the  otlier  side,  to 
(‘ontinne  their  joniiK'y  (‘ast?  In  this  connection  lie  drew  a 
vivid  ])i('tnre  of  the  future  of  the  ii^reat  West  lying  beyond  the 
i-iver,  and  argued  tliat  the  necessities  of  coinnierce  demanded 
tliat  tlie  bridges  aci-oss  the  river  be  a conceded  rigid,  which  the 
steamboat  interests  ought  not  to  he  ailowed  to  successfully 
resist,  and  thereby  stay  the  jirogress  of  develoinnent  and  civ- 
ilization in  the  region  to  the  west. 

‘AVhile  I cannot  recall  a word  or  sentence  of  the  argument, 
1 well  1‘ememher  its  effect  on  all  who  listened  to  it,  and  the 
dec'ision  of  the  court  fully  sustained  the  right  to  bridge  so 
long  as  it  did  not  unnecessarily  obstruct  navigation.’  ” 

(I.  Tarbell’s  Lincoln,  pp.  275-6.) 

(The  same  bridge  was  the  subject  of  the  unsuccessful 
suit  to  abate  brought  in  the  Iowa  District  in  1858  and  in 
which  the  abatement  order  by  the  United  States  District 
Court  of  Iowa  was  reversed  and  the  bill  dismissed  by  the 
United  States  Su])reme  Court.  2 Black,  485.  The  case  is 
valuable  as  marking  the  evolution  of  the  Lincoln  doctrine 
that  a man  has  as  good  right  to  go  across  a river  as  an- 
other has  to  go  up  or  down  the  river,  that  the  two  rights 
are  mutual,  that  the  existence  of  a bridge  which  does  not 
prevent  or  unreasonably  obstruct  navigation  is  not  incon- 
sistent with  the  naviguble  character  of  the  stream.  Mr. 
Lincoln  exerted  a powerful  influence  upon  the  develop- 
ment of  the  transportation  system  of  the  continent.  He 
is  the  author  of  the  American  doctrine  of  bridges.) 

It  is  indeed  true  as  was  pointed  out  by  the  dissenting  opinion 
of  Mr.  Justice  Nelson  in  that  case,  that  the  English  law  of  bridges 
was  the  other  way  (quoting  Lord  Denman  in  Williams  v.  Wilcox, 
8 Ad.  & Eh,  314).  The  English  doctrine  there  quoted  and  which 
has  a varied  but  by  no  means  preponderating  following  in  many 
American  jurisdictions  is  that: 

‘‘The  paramount  right  (of  navigation)  if  it  existed  at  all, 
must  have  been  a right  in  everv  part  of  the  space  between  the 
banks.” 

This  doctrine,  of  course,  placed  the  bridge  and  the  right  of 
navigation  in  irreconcilable  conflict  and  made  their  co-existence 
on  the  same  stream  an  impossibility.  Something  of  this  sort  lurked 
in  the  theory  of  the  defense,  which  proved  that  there  were  ten 
bridges  in  the  sixteen  miles  reach  of  the-  Des  Plaines  Kiver  and 
argued  hence  that  the  river  was  not  navigable.  That  argument  is 
built  on  the  English  doctrine  which  is  not  law  in  the  United  States 
and  is  not  law  in  Illinois  and  was  si^ecifically  condemned  by  the 


SiiprcMiu'  (\)iiri  ()1‘  Illinois  in  Illinois  Ilivor  Pochol  Pompdf/y  v. 
Peoria  Pridf/c  /Issocialiou,  .‘>8  III.,  4()7. 

TIk'  opinion  of  tlio  ninjority  in  the  Ward  (aise  (l^  Hlaek,  490) 
({ispos(‘(l  of  this  as  Toljows: 

“It  is  also  insisted  with  great  earnestness  that  the  piihlie 
is  entitled  to  the  free  navigation  of  tlie  whole  river  from  bank 
to  hank,  and  as  the  western  half  of  the  river  is  imdeniahly 
within  the  jnrisdietion  of  Iowa,  it  follows  that  the. bridge  is  a 
(hear  nuisance  within  that  district  to  the  extent  of  Indf  its 
length.  According  to  this  assumption  no  lawful  bridge  could 
he  built  across  the  Mississippi  anywhere;  nor  could  the  great 
facilities  to  commerce,  accomplished  by  the  invention  of  rail- 
roads, be  made  available  where  great  rivers  had  to  be  crossed.” 

The  Illinois  court  laid  down  the  rule  in  terms  even  more  specific, 
thus : 

“In  the  case  of  the  C olumhian  Ins.  Co.  v.  The  Peoria  Bridge 
Co.y  6 McLean,  72,  the  able  and  learned  judge  who  delivered 
the  opinion  in  that  case  entertained  similar  views  to  those  we 
hold,  when  he  said  the  right  of  free  navigation  of  this  river 
is  not  inconsistent  with  the  right  of  the  State  to  provide  means 
of  crossing  the  river  by  bridges  or  otherwise,  when  the  wants 
of  the  public  require  them,  provided  such  bridges  do  not,  es- 
sentially, injure  the  navigation  of  the  river.  It  must  be  con- 
sidered as  settled,  that  the  right  to  a free  navigation  of  our 
western  rivers,  and  the  right  of  the  State  to  adopt  those  means 
of  crossing  them  which  the  skill  and  ingenuity  of  man  have 
devised,  as  both  are  ecpially  important,  are  co-existent,  and 
neither  can  be  permitted  to  destroy  or  essentially  impair  the 
other.  The  authority  to  construct  a bridge  across  a navigable 
water  wholly  in  this  State  should  be  exercised  in  such  a niau- 
ner,  as,  while  it  gives  full  effect  to  the  power  itself,  it  should 
interfere  as  little  as  ])ossihle  with  the  right  of  free  naviga- 
tion; and  this  is  the  true  test  whether  a ])arti('ular  structure 
is  such  an  obstruction  as  is  contrary  to  law. 

“We  go  somewhat  farther,  and  say,  since  it  is  in  the  very 
nature  of  these  structures  to  obstruct,  in  some  degree,  free 
navigation,  by  contracting  the  channel  or  otherwise,  and  while 
it  is  admitted  the  State  had  the  ])ower  to  authorize  their  erec- 
tion, a bridge  constructed  on  the  most  a])proved  plan,  at  the 
proper  place  and  with  sufficient  channel  between  the  piei-s, 
over  any  of  our  navigable  waters,  cannot,  under  any  circum- 
stances, l)e  held  to  be  a material  obstriudion  of  the  naviga- 
tion, if  it  be  shown  that  in  oi-dinary  times  with  ordinary  wind 
and  water,  the  draw  can  be  safely  ])assed,  and  it  be  further 
shown  that  no  better  structure  could  be  erected  for  the  j)ur- 
])ose  designed  with  the  amount  of  outlay  usually  demanded 


(>08 


foi’  siu'li  inH](‘i‘tal<iiigs.  If,  on  ronoliing  one  of  these  l)ridges, 
the  vessel  should  be  overtaken  by  an  unfavorable  wind,  or  by 
any  otliei*  (‘ireuinstanee  that  should  render  some  delay  pru- 
dent, the  delay  must  be  incurred,  for  the  right  to  erect  the 
bridge  is  ('o-extensive  with  the  right  to  navigate  the  river,  and 
boats  should  not,  heedlessly,  tempt  or  run  into  danger.  Ward 
(i  (i1.  v.  Propeller  A.  liosHiter,  G McLean,  1)3;  Jolly  et  al.  v.  T. 
II.  Draa'hridye  Co.,  ib.,  238.” 

(111.  Piver  l^aeket  Co.  v.  Peoria  Bridye  Ass’a.,  38  Til.,  467.) 

The  two  rights  of  navigating  one  way  and  bridgjng  at  right- 
angles  thereto,  are  no  more  inconsistent  in  fact  or  in  Illinois  law 
than  the  intersection  of  two  streets  or  the  crossing  of  a railroad 
by  a country  highway. 

Tn  1859  Mr.  Lincoln  had  occasion  to  discuss  the  ordinance  of 
1787.  Tn  his  address  at  Columbus,  Ohio,  September  16,  1859,  he 
said : 

There  was  another  part  of  our  political  history  made  by 
the  very  men  who  were  the  actors  in  the  Kevolutioh,  which 
has  taken  the  name  of  the  ordinance  of  ’87.  Let  me  bring 
that  history  to  your  attention.  In  1784,  I believe  this  same 
i\rr.  Jefferson  drew  up  an  ordinance  for  the  government  of  the 
country  upon  which  we  now  stand;  or  rather  a frame  or  draft 
of  an  ordinance  for  the  government  of  this  country,  here  in 
Ohio,  our  neighbors  in  Indiana,  us  who  live  in  Illinois,  and  our 
neighbors  in  AYisconsin  and  Michigan.  Tn  that  ordinance, 
drawn  u])  not  only  for  the  government  of  that  territory,  but 
for  the  territories  south  of  the  Ohio  Biver,  Mr.  Jefferson 
expressly  provided  for  the  prohibition  .of  slavery.  Judge 
Douglas  says,  and  perhaps  he  is  right,  that  that  provision  was 
lost  from  that  ordinance.  I believe  that  is  true.  lYhen  the 
vote  was  taken  upon  it,  a majority  of  all  present  in  the  Con- 
gress of  the  Confederation  voted  for  it;  but  there  were  so 
many  absentees  that  those  voting  for  it  did  not  make  the  clear 
majority  necessary,  and  it  was  lost.  But  three  years  after 
that  the  Congress  of  the  Confederation  were  together  again, 
and  they  adopted  a new  ordinance  for  the  government  of  this 
Xorthwest  Territory,  not  contemplating  territory  south  of  the 
river,  for  the  States  owning  that  territory  had  hitherto  re- 
frained from  giving  it  to  the  General  Government;  hence  they 
made  the  ordinance  to  apply  onlv  to  what  the  government 
owned.  Tn  that,  the  provision  excluding  slavery  was  inserted 
and  passed  unanimously,  or  at  aUy  rate  it  passed  and  became 
a part  of  the  law  of  the  land.  Under  that  ordinauee  ive  live. 
First,  here,  in  Ohio,  vou  were  a territory,  then  an  enalhinv  act 
was  passed,  authorizing  you  to  form  a constitution  and  State 


^•()V(‘rniiuMil,  pi’ovided  it  was  Kepiiblican,  and  not  in  conflict 
with  tlu^  ordinance  ot‘  ’87.  When  you  i'l'anied  your  constitu- 
tion and  presented  it  for  admission,  1 think  you  will  tind  the 
legislation  upon  the  subject  will  show  that,  ‘whereas  you  had 
t’ornied  a constitution  that  was  .Republican,  and  not  in  conflict 
with  the  ordinance  of  ’87,’  therefore  you  were  admitted  u[)on 
0([ual  tooting  with  the  original  States.  Tlie  same  process 
in  a few  years  was  gone  through  with  Indiana,  and  so  with 
Illinois,  and  the  same  substantially  witli  Michigan  and  Wis- 
consin. 

“Not  only  did  that  ordinance  prevail,  but  it  was  constantly 
looked  to  whenever  a step  was  taken  by  a new  Territory  to 
become  a State.  Congress  always  turned  their  attention  to 
it,  and  in  all  their  movements  upon  this  subject,  they  traced 
their  course  by  that  ordinance  of  ’87.  W^hen  they  admitted 
new  states,  they  advertised  them  of  this  ordinance  as  a part 
of  the  legislation  of  the  country.  They  did  so  because  they 
had  traced  the  ordinance  of  ’87  throughout  the  history  of  this 
country.  Begin  with  the  men  of  the^lievolution,  and  go  down 
for  sixty  entire  years,  and  until  the  last  scrap  of  that  territory 
conies  into  the  Union  in  the  form  of  the  State  of  AYisconsin, 
everything  was  made  to  conform  to  the  ordinance  of  ’87,  ex- 
cluding slavery  from  that  vast  extent  of  country.  . 

“I  omitted  to  mention  in  the  right  place  that  the  Constitu- 
tion of  the  United  States  was  in  process  of  being  framed 
when  that  ordinance  was  made  by  the  Congress  of  the  Con- 
federation; and  one  of  the  first  acts  of  Congress  itself,  under 
the  new  Constitution  itself,  was  to  give  force  to  that  ordinance 
by  putting  power  to  carry  it  out  into  the  hands  of  new  officers 
under  the  constitution,  in  the  place  of  tlie  old  ones,  who  had 
been  legislated  out  of  existence  by  the  change  in  the  govern- 
ment from  the  Confederation  to  the  Constitution.  Not  only 
so,  l)ut  I believe  Indiana  once  or  twice,  if  not  Ohio,  petitioned 
the  General  Government  for  the  privilege  of  suspending  that 
provision  and  allowing  them  to  have  slaves.  A report  made 
by  Mr.  Randolph,  of  Virginia,  himself  a slaveholder,  was  di- 
rectly against  it,  and  the  action  was  to  refuse  them  the  privi- 
lege of  violating  the  ordinance  of  ’87.” 

(II  Lincoln’s  Collected  Works,  pp.  549-50.) 

Mr.  Lincoln  repeatedly  gave  expression  to  the  same  views  in 
other  of  his  speeches  and  State  papers.  The  one  foregoing  quo- 
tation is  sufficient  to  show  his  views. 

The  act  to  which  he  refers  as  giving  force  to  the  ordinance  under 
the  new  Constitution  and  putting  power  into  the  hands  of  new 
officers  under  the  Constitution  is  the  Act  of  August  7,  1789,  en- 


610 


A(*t  to  Provide  for  tlio  Ooverinneiit  of  the  Territory 
Northwest  of  the  JPiver  Oliio”  (1  IJ.  S.  Stat.  at  Large,  p.  50)  wjiicli 
is  set  fortli  in  tliis  hi'ief  in  the  ])oition  devoted  to  the  ordinance 
of  17cS7. 

Aiignst  26th,  IcSOo,  Mr.  Lincoln  made  Ids  last  public  address  spe- 
cifically to  the  ])eople  of  Illinois.  It  is  in  tlie  form  of  a letter  to 
lion,  dames  C.  Conkling  of  S})ringfield,  and  mainly  directed  to 
tliose  whom  he  says  ‘Lire  dissatished  witli  me.”  After  consid- 
erable discussion  he  says: 

“Tlie  signs  look  lietter.  The  Father  of  AVaters  again  goes 
nnvexed  to  the  sea.  * * Nor  must  Uncle  Sam’s  web- 

feet  he  forgotten.  At  all  the  watery  margins  they  have  been 
present.^  Not  only  in  the  deep  sea,  the  broad  bay,  and  the 
rapid  river,  luit  also  up  the  narrow  muddy  bayou,  and 
wherever  the  ground  was  a little  damp  they  have  been  and 
made  their  tracks.” 

(II  Lincoln’s  Collected  AYorks,  p.  398.) 

Ltncoun’s  First  Experience  as  a Navigator. 

In  1816, 

At  the  early  age  of  seven  years  he  was  'brought  by  his  father 
in  a flat  boat  down  the  rolling  fork  to  the  Ohio;  and  down  the 
Ohio  from  Knob  Creek,  Kentucky,  to  Thompson’s  Ferry,  Indiana, 
where  they  traveled  on  foot  to  Gentryville,  Spencer  County,  In- 
diana. 

(Whitney’s  Life,  pp.  24-25;  1 Tarbell,  pp.  18-19.) 

“When  he  was  sixteen  years  old  (1825)  he  entered  into 
the  service  of  one  Taylor,  who  owned  and  operated  a ferry 
franchise  across  the  Ohio  at  the  mouth  of  Anderson  Creek. 
Here  Lincoln  remained  as  a boy-of-all-work  for  nearly  a year ; 
earning  six  dollars  a month.”  (Whitney’s  Life,  p.  45.) 

“In  considering  the  different  opportunities  for  develop- 
ment which  the  boy  had  at  this  time,  it  should  not  be  for- 
gotten that  he  spent  many  months  at  one  time  or  another  on 
the  Ohio  and  Mississippi  Kivers.  In  fact,  all  that  Abraham 
Lincoln  saw  of  inen  and  the  world  outside  of  Gentr^wille  and 
its  neighborhood,  until  after  he  was  twenty-one  years  of  age 
he  saw  on  these  rivers.  For  many  years  the  Ohio  and  the 
Mississippi  were  the  Appian  Way,  the  one  route  to  the  world 
for  the  western  settlers.  To  preserve  it  they  had  been  willing 
in  early  times  to  go  to  war  with  Spain  or  with  France, 
to  secede  from  the  Union,  even  to  join  Spain  or  France 
against  the  United  States  if  either  country  would  insure  their 


Gll 


right  to  the  liigiiway.  I'n  the  long  yeai's  in  vvhicli  the  owner- 
ship of  tlie  great  rivers  was  unsettled,  every  man  of  them 
had  come  to  feel  with  Benjamin  Franklin  ‘a  neighbor  might 
as  well  ask  me  to  sell  my  street  door.’  in  fact,  this  water- 
way was  their  'street  door,’  and  all  that  many  of  them  ever 
saw  of  the  world  passed  here.  Up  and  down  the  rivers 
was  a continual  movement.  Odd  craft  of  every  kind  possible 
on  a river  went  by;  ‘arks’  and  ‘sleds,’  with  tidy  cabins  where 
families  lived,  and  where  one  could  see  the  washing  stretched, 
the  children  playing,  the  mother  on  pleasant  days  rocking 
and  sewing;  keel-boats,  which  dodged  in  and  out  and  turned 
inquisitive  noses  up  all  the  creeks  and  bayous ; great  fleets 
from  the  Alleghenies,  made  up  of  a score  or  more  of  timber 
rafts,  and  manned  by  forty  or  fifty  rough  boatmen;  ‘Orleans 
boats,’  loaded  with  flour,  hogs,  produce  of  all  kinds;  pirogues, 
made  from  great  trees;  ‘broad-horns;’  curious  nondescripts 
worked  by  a wheel ; and,  after  1812,  steamboats. 

“All  this  traffic  was  leisurely.  Men  had  time  to  tie  up  and 
tell  the  news  and  show  their  wares.  Even  the  steamboats 
loitered  as  it  pleased  them.  They  knew  no  schedule.  They 
stopped  anywhere  to  let  passengers  off.  They  tied  up  wher- 
ever it  was  convenient,  to  wait  for  fresh  wood  to  be  cut  and 
loaded,  or  for  repairs  to  be  made.  Waiting  for  repairs, 
seems,  in  fact,  to  have  absorbed  a great  deal  of  the  time  of 
these  early  steamers.  They  were  continually  running  onto 
‘sawyers,’  or  ‘planters,’  or  ‘wooden  islands,’  and  they  blew 
up  with  a regularity  which  was  monotonous.  Even  as  late 
as  1842,  when  Charles  Dickens  made  the  trip  down  the 
Mississippi,  he  was  often  gravely  recommended  to  keep  as 
far  aft  as  })ossible,  ‘l)ecause  the  steamboats  generally  blew  u]) 
forward.  ’ 

“With  this  varied  river  life  Abraham  Lincoln  first  came 
into  contact  as  a ferryman  and  boatman,  when  in  1826  he 
spent  several  months  as  a ferryman  at  the  mouth  of  An- 
derson (h*eek,  where  it  joins  the  Ohio.  This  experience  sug- 
gested new  possibilities  to  him.  Tt  was  a custom  among 
the  farmers  of  Ohio,  Indiana  and  Illinois  at  this  date  to 
collect  a (juantity  of  produce,  and  float  down  to  New  Orleans 
on  a raft,  to  sell  it.  Young  Lincoln  saw  this,  and  wanted 
to  try  his  fortune  as  a produce  merchant.  An  incident  of 
his  projected  trip  he  related  once  to  Mr.  Seward: 

“ ‘Seward,’  he  said,  ‘did  you  ever  hear  how  T earned  my 
first  dollar!’ 

“ ‘No,’  said  Mr.  Seward. 

“ ‘Well,’  replied  he,  ‘I  was  ai)out  eighteen  years  of  age, 
and  belonged,  as  you  know,  to  what  they  call  down  south  the 
“scrubs;”  people  who  do  not  own  land  and  slaves  are  nobody 
there;  but  we  had  succeeded  in  raising,  chiefly  l)y  my  labor, 
sufficient  produce,  as  T thought,  to  justify  me  in  taking  it 


ciowji  the  river  to  selt.  After  mucli  persuasion  1 had  got  the 
consent  of  my  mother  to  go,  and  had  constructed  a flat-boat 
large  enough  to  take  the  few  barrels  of  things  we  had  gath- 
ered to  New  Orleans.  A steamer  was  going  down  the  river. 
We  have,  you  know,  no  wharves  on  the  western  streams,  and 
the  custom  was,  if  passengers  were  at  any  of  the  landings 
tliey  were  to  go  out  in  a boat,  the  steamer  stopping,  and 
taking  them  on  board.  , I was  contemplating  my  new  boat, 
and  wondering  whether  I could  make  it  stronger  or  improve 
it  in  any  part,  when  two  men  with  trunks  came  down  to 
the  shore  in  carriages,  and  looking  at  different  boats,  singled 
out  mine,  and  asked,  ‘AVho  runs  this?”  I answered  mod- 
estly, '‘I  do.”  ^A¥ill  you,”  said  one  of  them,  ‘‘take  us  and 
our  trunks  out  to  the  steamer?”  “Certainly,”  said  I.  I was 
very  glad  to  have  the  chance  of  earning  something,  and  sup- 
posed that  each  of  them  would  give  me  a couple  of  bits.  The 
trunks  were  put  in  my  boat,  the  passengers  seated  themselves 
on  them,  and  I sculled  them  out  to  the  steamer.  They  got 
on  board,  and  I lifted  the  trunks  and  put  them  on  the  deck. 
The  steamer  was  about,  to  put  on  steam  again,  when  I called 
out,  “You  have  forgotten  to  pay  me.”  Each  of  them  took 
from  his  pocket  a silver  half-dollar  and  threw  it  on  the  bottom 
of  my  boat.  I could  scarcely  believe  my  eyes  as  I picked 
up  the  money.  You  may  think  it  was  a very  little  thing,  and 
in  these  days  it  seems  to  me  like  a trifle,  but  it  was  a most 
important  incident  in  my  life.  I could  scarcely  credit  that  I, 
the  poor  boy,  had  earned  a dollar  in  less  than  a day;  that  by 
honest  work  I had  earned  a dollar.  I wms  a more  hopeful 
and  thoughtful  boy  from  that  time.’ 

“Soon  after  this,  while  he  was  working  for  Mr.  Gentry, 
the  leading  citizen  of  Gentryville,  his  employer  decided  to 
send  a load  of  produce  to  New  Orleans,  and  chose  young 
Lincoln  to  go  as  ‘bow-hand,’  ‘to  work  the  front  oars.’  For 
this  trip  he  received  eight  dollars  a month  and  his  passage 
back.  Who  can  believe  that  he  could  see  and  be  part  of 
this  river  life  without  learning  much  of  the  ways  and  thoughts 
of  the  world  beyond  him?  Every  time  a steamboat  or  raft 
tied  up  near  Anderson  Creek  and  he  with  his  companions 
boarded  it  and  saw  its  mysteries  and  talked  with  its  crew, 
every  time  he  rowed  out  with  passengers  to  a passing  steamer, 
who  can  doubt  that  he  came  back  with  new  ideas  and  fresh 
energy?  The  trips  to  New  Orleans  were,  to  a thoughtful  boy, 
an  education  of  no  mean  value.  It  was  the  most  cosmo- 
politan and  brilliant  city  of  the  United  States  at  that  date, 
and  there  young  Tuncoln  saw  life  at  its  intensest.” 

(I.  Tarbell,  pp.  .37-8-9-40.) 


CobUMIUA  AND  SnAKB  JIlVDKS. 


.1875  rnited  States  Engineer’s  Ivei)ort,  1875 — Part  .II,  App. 

(i(J-e),  “Improvement  of  the  Upper  Columbia  and  Snake 
Pivers,  Oregon  and  the  territories  of  Washington  and 
Idaho,”  p.  772: 

“The  sections  of  the  two  rivers  to  which  reference  is  par- 
ticularly intended,  comprise  those  portions  from  above  the 
‘Dalles’  on  the  Columbia,  a succession  of  falls  and  rapids 
cleft  through  deep  canons  and  extending  over  a distance  of 
fifteen  miles  up  to  Priest’s  Kapids,  in  Washington  Territory, 
on  the  main  fork  of  the  river ; and  up  its  tributary,  the  Snake, 
to  Lewiston,  in  Idaho  Territory,  at  junction  with  the  Clear- 
water. These  are  the  principal  tributaries  of  the  Columbia, 
draining  an  immense  extent  of  country,  from  the  north,  east, 
south  and  west.”  (Abst.,  1199.) 

On  page  773,  under  the  heading,  “Squally  Hook  Kapids,”  as 
follows : 

“The  contract  called  for  the  removal,  above  the  level  of 
the  plane,  six  feet  below  lowest  low  water  mark  of  both 
of  the  two  rocks  designated  in  the  specifications,  and  for  the 
depositing  of  all  debris  at  such  suitable  places  as  might  be 
selected  by  the  engineer  in  charge,  or  his  deputed  agent. 
The  drilling  and  blasting  continued  fT’om  the  3d  to  the  26th 
of  December,  and  the  clearing  off  of  the  loosened  and  broken 
u])  rock  by  raking  and  blasts  occu])ied  a week  longer.  By  the 
removal  of  the  two  rocks  a third,  but  not  very  large  one, 
with  only  three  and  one-half  feet  of  water  upon  it,  appeared 
in  the  middle  of  the  channel  and  had  to  be  blasted  out  and 
brought  down  to  grade.  The  work  having  been  entirely  exe- 
cuted, a final  examination  was  made  and  a depth  everywhere 
found  exceeding  that  required  by  contract.  The  reefs  which 
extend  from  the  south  shore  cause,  perhaps,  a third  of  the 
entire  river,  when  at  a low  stage,  the  flow  through  its  chan- 
nel. The  velocity  of  the  current  was  obtained  ])y  several 
trials,  and  was  found  to  l)e  at  the  rate  of  about  seven  miles 
per  hour;  when  the  water  is  confined,  and  obtains  a con- 
siderable fall,  it  may  possilily  reach  ten  miles.  In  a dis- 
tance of  1,000  feet  the  fall  is  3.2.”  (Abst.,  p.  1200.) 

“Upper  Umatilla  Kapids”  (p.  771)  : 

‘‘As  stated  in  the  last  annual  report  and  by  reference  to 
the  map  of  the  locality,  ‘it  will  be  seen  that  what  has  always 
been  known  as  the  “low  water  channel”  and  which  has  been 
used  up  to  the  present  time  is  a very  long  and  circuitous  one, 
bounded  on  both  sides  by  reefs  and  shoal  water.  Experienced 
pilots  can  alone  navigate  it.’  The  one  called  the  ‘high  water 


('liaini(‘l’  which  hitlunto  has  only  been  used  during  the  season 
of  Jiigii  water,  and  can  now  be  safely  run  during  the  lowest 
stages  of  the  watei-  in  wliich  boats  can  pass  over  the  rapids 
between  Wallula,  the  shii)ping  i)oint  of  Walla  AValla,  85  miles 
distant  fi-oni  tlie  liver  and  the  head  of  the  Dalles  of  (yelilo, 
lias  lieen  made  a direct  and  short  one.  At  the  termination  of 
the  work  of  the  season  of  1878  and  1874,  its  width  at  the 
narrowest  ])oint  was  scarcely  40  feet.  This,  for  several  rea- 
sons, was  by  no  means  sufficient,  and  it  was  deemed  advisable 
that  an  increased  breadth  be  given  to  it  as  soon  as  the  neces- 
sary funds  became  available  for  the  purpose.  It  was  also 
then  stated  upon  the  authority  of  the  pilots,  that,  ‘notwith- 
standing the  unevenness  of  the  bottom  on  the  outside  of  the 
channels  from  which  the  rocks  had  been  removed,  that  boats 
ascending  with  a draft  of  four  or  even  five  feet  of  water, 
would  experience  no  difficulty;  but  that  in  descending,  con- 
siderable risk  would  be  encountered  on  account  of  the  swift- 
ness of  the  current,  there  being  danger  of  a sudden  sheer- 
off  on  account  of  the  boats  not  being  entirely  manageable.  At 
the  head  of  the  rapid  the  water  has  a velocity  of  Iwelve  miles 

an  hour.’  ” (Abst.,  pp.  1200-01.) 

# * * * * # # * 

“The  appropriation  for  the  fiscal  year  was,  however,  in- 
adequate for  the  completion  of  the  work.  At  this  rapid,  only 
one  such  rocks  were  selected  for  removal  as  would  most 
benefit  navigation.  Only  a limited  quantity  could  be  dis- 
placed in  order  not  to  exceed  the  amount.  On  account  of 
the  small  yearly  appropriations,  the  work  at  Umatilla  Upper 
Uapids  has  already  extended  over  three  working  seasons. 
On  the  2d  of  March,  as  already  stated,  the  removal  of  the 
rocks  was  continued  at  this  locality  and  progressed  as  well  as 
could  be  expected.  On  the  5th,  the  ice  gorge  above  broke  up, 
carrying  away  Tines  and  causing  the  loss  of  anchors.  Loose 
]heces  continued  to  come  down,  but  being  rotten  failed  to 
do  much  damage  and  did  not  cause  any  great  delay  in  pros- 
ecuting the  work.  Occasionally  terrific  wind  interfered  with 
its  advancement,  although  the^  gauge  read  but  fifteen  inches 
below  zero  of  the  low  water  mark  at  Umatilla;  still  the  neces- 
sity for  its  quick  completion  was  urgent  before  any  interrup- 
tion should  occur  from  a spring  rise  in  the  river.  The  water 
was  also  very  clear,  and  consequently  the  drilling  was  easily 
effected  and  operations  very  much  facilitated.  By  the  22nd 
of  the  month,  at  which  date  the  limited  appropriation  be- 
came exhausted,  all  the  rocks  (Abst.,  p ) from  the  edge 

of  the  reef  on  the  south  side  at  the  narrowest  part  of  the 
channel,  had  been  removed;  tliere  were  four  large  and  two 
small  ones.  The  entire  improvement  contemplated,  however, 
had  not  yet  been  accomplished.  A large  mass  of  rock  on  the 


south  sido,  nt  the  liead  oi*  the  ehaiiiiel,  wh(‘r(‘  th(‘  width  al- 
ready attained  was  hut  75  feet,  still  re(iuires  displaeenient, 
as  well  as  the  four  roeks  on  the  uortti  side  ip-eviously  (‘sti- 
uiated  for  as  foruiiug  part  of  the  yearly  work.  This  y)or- 
tioii  of  the  iiiiproveuieut,  for  the  further  eulargeiuent  of  the 
ehauuel,  will  form  part  of  the  operations  during  the  ap- 
])i-oaehiug  working  season  of  the  current  fiscal  year,  1875  to 
il87().  The  depth  of  water  obtained  on  the  rocks  after  blast- 
ing was  six  feet  at  the  very  extreme  low  stage  of  the  river 
existing  at  the  time.  The  current  then  ran  at  the  rate  of 
twelve  miles  per  hour  for  150  feet  at  the  upper  entrance  to 
the  rapid.  The  length  of  the  upper  rapid  is  about  850  feet, 
with  a present  width  of  over  75  feet  throughout,  except  im- 
mediately at  the  head;  the  entire  length  of  the  rapids — 
upper,  middle  and  lower— from  the  head  to  Umatilla,  is  about 
six  miles.”  (Abst.,  p.  1201.) 

Also  on  page  776: 

‘‘Besides  these  works  already  enumerated,  it  is  intended  to 
apply  during  the  current  year  a portion  of  the  appropria- 
tion toward  the  improvement  of  Pine  Tree  Eapid,  on  the 

(Abst.,  p ) Snake  Kiver,  about  32  miles  above  its  mouth. 

This  is  the  worst  rapud  at  low  water  on  the  river;  there  is 
scarcely  width  enough  for  a boat  to  ])ass  through,  and  at  one 
time  it  was  customary  to  war])  around  the  opposite  of  the 
island  which  here  divides  the  river  into  two  channels.  If  en- 
larged, each  boat  could  make  from  three  to  four  additional 
trips  per  season  to  Lewiston,  Idaho  Territory,  situated  at 
the  junction  with  the  Clearwater.  While  navigation  remains 
o])en  on  the  Columbia  to  Wallula  during  tlie  entire  season 
of  low  water,  and  is  oidy  sus])ended  on  account  of  the  river 
becoming  gorged  with  ice,  still  it  only  continues  on  the  Snake 
for  a ])eriod  of  about  four  niontbs,  from  the  hi'st  week  in 
April  to  about  the  middle  of  Augusl.”  (Abst.,  p.  1202.) 

x\lso  on  page  777 : 

“Between  Palouse  Landing  and  Lewiston,  the  ])resent  bead 
of  river  steamboat  navigation,  a distance  of  about  62  miles, 
some  dangerous  ra])ids  exist.  In  a few  thousand  feet  after 
])assing  the  mouth  of  the  Palouse,  tb.e  foot  of  the  ra])id  of  the 
same  name  is  reached;  this  is  considered  a very  had  one. 
At  a low  stage  of  water  the  channel  is  lined  on  both  sides 
with  rock;  although  not  so  narrow  as  ‘Pine  Tree,’  still  it 
is  scarcely  wide  enough  at  ditferent  ])oints  for  boats  to 
run  in  safety,  in  consecpience  of  the  strong  currents  and  eddies 
tending  to  throw'  them  against  the  rugged  edges 
of  the  outline  of  the  (diiite.  During  the  high  wmter  in 
the  last  week  of  May,  while  a ])ersonal  reconnaissance  of 
the  Snake  was  being  made,  more  than  an  hour  was  occu])ied 


ok; 


ill  «isc(‘ii(liii^'  this  ia])i(l  of  about  four  miles  in  extent,  and 
less  than  five  minutes  in  making'  the  descent.” 

A^ain  on  page  779: 

“''Idle  velocity  ol'  the  current  is  greater  in  the  Snake  than 
in  the  Ckilumhia  IKver;  in  tlie  former,  the  general  average 
is  very  nearly  four  miles  an  hour,  and  in  the  latter,  a little 
over  three.  In  descending  the  Snake  from  Lewiston  to  Alpo- 
way,  12  miles,  the  Tenino,  with  a very  light  freight,  ran 
the  distance  in  30  minutes ; and . down  the  Columbia,  from 
the  junction  to  Wallula,  11  miles,  in  35  minutes.  The  boats 
now  employed  on  the  Columbia  from  Celilo  to  Wallula,  and 
which,  during  the  highest  stage  of  water  in  the  Snake,  ascend 
to  Lewiston,  are  generally  loaded  to  a depth  of  between 
three  and  a half  and  four  feet;  their  capacity  is  from  100  to 
150  tons  of  freight.  The  only  three  boats  now  engaged  in  the 
trade  are  the  Yakima,  Tenino  and  Owyhee — named  after 
some  of  the  trilmtaries  of  the  Columbia.”  (Abst.,  p.  1202.) 

The  Columbia  and  Snake  Eiveks 

1891  (lovernment  Reports  of  U.  S.  Engr.  Rep.  1891,  Part  V.,  App. 

W,  W.  8,  p.  3210. 

“Improvement  of  Upper  Columbia  and  Snake  Rivers,  Ore- 
gon and  Washington.  Description  of  original  condition. 

“Under  the  above  head  it  has  been  deemed  proper  to  offi- 
cially include  the  continuous  Columbia  and  (2871)  Snake  Riv- 
ers from  Celilo,  at  the  head  of  The  Dalles,  to  Lewiston. 

“The  upper  Columbia  and  Snake  form  a continuous  line  of 
navigable  river,  but  broken  by  many  rapids,  rendering  navi- 
gation difficult  and  dangerous. 

“These  rapids  are  in  nearly  every  instance  caused  by  rocky 
bars  with  occasional  boulders,  and  the  channels  were  crooked 
and  narrow. 

“Before  improvement  the  ruling  depth  at  low  water  was  two 
to  three  feet  on  many  of  these  bars,  some  of  which  were  prac- 
tically impassable  at  low  water.” 

^ ^ ^ ^ 

Page  3212.  “Recommendations  and  Remarks.  In  the  year 
of  1858  the  Col.  Wright,  of  302  tons  capacity,  was  built  at  the 
Des  Chutes,  to  run  between  Celilo  and  Lewiston,  that  stretch 
of  river  officially  known  as  the  upper  Columbia  and  Snake.” 
(Abst.,  p.  1197.) 

From  that  time  and  for  many  years  this  stretch  of  river  was 
navigated  by  numerous  steamboats,  and  played  an  important  part 
in  the  transportation  business  between  the  interior  and  the  sea- 
board. 


G17 


“In  1S7.'>  llio  ^i>()V(M'inn(Mil  ('()nini(n)(‘(‘(l  11i(‘  work  of  improving 
llu‘  iiavii»;iti()n  of  river  l)y  removing-  ro(5ks,  etc*.,  and  up  to  the 
present  time  $250, ()()()  has  been  appropriated  for  this  work. 

“With  tlie  advent  of  railroads  into  the  country  the  import- 
ance of  tlie  river  as  a commercial  highway  decreased,  until 
now  navigation  is  confined  to  the  Snake  River  between  Lewis- 
ton and  ILparia,  a distance  of  77  miles,  there  being  no  naviga- 
tion between  Celilo  and  Riparia,  a distance  of  189  miles. 

“Upon  this  portion  of  the  river  between  Lewiston  and  Ri- 
paria there  are  three  steamboats : the  Annie  Faxon,  Spokane, 
and  Almota.  Only  one  of  these  is  kept  in  commission,  however, 
and  this  makes  tri- weekly  trips  between  Lewiston  and  Riparia. 
These  boats  lay  up  in  the  winter  when  there  is  danger  from 
ice,  and  also  when  business  on  the  river  is  slack. 

“The  Northern  Pacific  Railroad  Company  has  two  steamers 
at  Pasco,  but  has  made  no  use  of  them  for  several  years. 

“The  problem  of  cheap  transportation  from  the  interior  to 
the  seaboard  is  one  deserving  of  the  most  careful  and  earnest 
attention.  The  people  are  not  satisfied  with  the  rates  exacted 
by  the  railroad  companies,  and  in  the  minds  of  most  of  the 
people  interested  the  solution  of  the  problem  lies  in  the  navi- 
gation of  the  Columbia  and  Snake  Rivers. 

“There  are  two  complete  obstructions  to  navigation  between 
the  interior  and  the  seaboard,  the  Dalles  and  the  Cascades. 

“Whatever  part  these  rivers  are  to  play  in  the  transporta- 
tion of  the  future  for  the  carriage  of  the  products  of  the 
country,  it  must  lie  evident  that  everything  de])ends  primarily 
on  overcoming  these  obstructions  at  the  Dalles  and  the  Cas- 
cades.” (Abst.,  pp.  1197-8.) 

“It  is  not  to  be  denied  that  the  most  important  work  which 
can  be  done  upon  these  rivers  is  the  survey  of  their  upper 
portions,  mentioned  by  this  lioard  of  engineers,  which  survey 
would  be  a necessary  supplement  to  the  survey  of  the  Dalles 
and  Celilo  Falls,  made  in  1888. 

“The  ])roject  for  the  improvement  of  the  river  at  the  Dalles 
and  Celilo  Falls  should  include  the  project  for  the  complete 
and  pernuinent  improvement  of  the  upper  rivers. 

“These  upper  rivers  in  their  present  condition,  or  as  they 
might  be  improved  under  the  existing  project  would  be  very 
heavily  handicapped  in  competing  with  railroad  transporta- 
tion. Such  swift  water  navigation  would  be,  to  say  the  least, 
very  unsatisfactory,  and  would  hardly  justify  the  large  ex- 
penditure required  for  its  accommodation  at  the  Dalles  and 
Cascades. 

“There  is  no  river  in  the  United  States  or  in  the  world  of 
which  I have  or  can  obtain  knowledge  with  slopes- anywhere 
near  as  great  as  the  slo])es  of  the  Upper  (k)lumbia  and  Snake, 
which  is  navigated  in  a satisfactorily  and  commercially  prac- 


(il8 


ti(*al)le  way  without  the  aid  of  locks  and  dams.  It  seems  perti- 
mmt  to  compare  these  rivers  with  some  of  the  other  important 
rivers  of  tlie  country  which  have  been  improved,  or  for  the 
improvement  of  which  prrojects  have  been  prepared. 

“n[)per  Columbia  and  Snake  Rivers.  From  Celilo  to  Wal- 
lula  the  Columbia  is  114  miles  long:  in  this  distance  the  fall 
is  165  feet  or  an  average  of  one  foot  5.4  inches  per  mile.  This 
is  reduced  from  railroad  surveys. 

“From  Lewiston  to  its  mouth  the  Snake  is  130  miles  in 
length,  and  has  a total  fall  of  393  feet  or  average  fall  of  2 feet 

lOJ  inches  per  mile.  In  both  rivers  (Abst.,  p ) the  fall  is 

not  at  all  uniform.  There  are  long  stretches  of  comparatively 
([uiet  water,  broken  by  rapids  and  swifts,  where  the  main 
amount  of  fall  takes  place. 

“The  records  of  this  office  are  very  incomplete  concerning 
the  levels  along  the  rivers.  Most  of  the  surveys  made  in 
former  years  were  simply  to  determine  the  obstructions  met 
with,  the  depths  of  water,  channels,  etc.,  and  no  determination 
of  difference  of  level  and  slopes  were  made.  (x\bst.,  p.  1198.) 

“The  following  is  a 


LIST  OF  THE  PRINCIPAL  RAPIDS  BETWEEN  CELILO  AND  LEWISTON. 

with  such  physical  data  as  to  fall  and  slopes  as  are  obtain- 
able from  the  records  of  this 


Snake  River. 

Fall 

Five  Mile  Rapids 

2.3 

Fish  Hook  Rapids 

12.5 

Long  Crossing  Rapids 

Pine  Tree  Rapids 

11.5 

Monumental  Rapid 

1.7 

Palouse  Rapids 

1.3 

Texan  Rapids 

14.4 

Little  Goose  Island 

Rapids 

2.7 

Big  Goose  Island  Rapids 

Rapid  below  Penewawa 

Rapid  above  Penewawa 

Atwood  Island  Rapid 

Almota  Rapid 

Ra]hd  above  Almota 

Lower  Log  Cabin  Rapids 

3.4 

Upper  Log  Cabin  Rapids 

Rapid  above  Granite 

Point 

6.1 

Steptoe  Rapid 

Ra])id  aliove  White’s 

Ferrv 

3.2 

(Abst.,  p.  1199.) 

office.” 


Slope 

Slope 

Dis- 

])er 100 

per  mile 

tance 

feet 

(in  feet) 

1,100 

.20 

10.56 

6,600 

.189 

10.00 

5,000 

.23 

12.14 

300 

.56 

29.88 

1,700 

.076 

4.00 

6,600 

.218 

11.56 

3,000 

.09 

4.75 

5,000 

.068 

3.59 

2,500 

.244 

12.88 

2,100 

.15 

7.92 

“iMaj.  W.  A.  Jones,  in  his  annual  report  tor  tlui  fiscal  y(;ar 
(Muiing’  June  JO,  LSHO,  says: 

“"Snake  River  between  Lewiston  and  the  month  has  ordi- 
nary widths  of  1,000  feet,  a slope  of  J.48  feet  per  mile, 
and  a discharge  of  20,000  cubic  feet  j)er  second.  All 
the  bars  have  been  removed  to  the  extent  of  being  no  longer 
dangerous  to  competent  navigators  who  are  ac(iuainted  with 
them,  and,  with  the  exception  of  Long  Crossing  Bar  on  the 
Snake,  the  required  depth  below  the  datum  assumed  at  the 
time  our  project  was  adopted  has  been  obtained.  This  datum, 
however,  has  been  lowered  about  14  feet,  so  that  the  ruling 
low  water  depth  on  Snake  River  outside  of  Long  Crossing  Bar 
is  now  8 feet.  This  depth  I consider  sufficient  for  present 
purposes.” 

^‘No  amount  of  work  on  the  upper  rivers  or  improvement 
in  their  condition  will  relieve  the  interior  of  the  thralldom 
of  the  railroads  until  means  are  found  of  carrying  the  prod- 
ucts borne,  or  which  may  be  borne,  on  the  upper  rivers  past 
these  great  obstructions. 

“During  the  past  year  a great  deal  of  attention  has  been 
given  to  the  subject  by  the  Legislatures  of  Oregon  and  Wash- 
ington, by  the  press,  and  citizens  generally. 

“Efforts  were  made  by  the  Legislatures  of  the  two  States 
to  bring  about  some  co-operative  action  whereby  the  two 
States  could  join  in  building  ])ortage  railroads  at  The  Dalles 
and  Cascades,  but  constitutional  objections  rendered  this  im- 
possil)le.  The  Legislature  of  Oregon  then  appropriated 
$60,000  for  building  a ])ortage  railroad  at  the  Cas- 
('ades  in  order  to  give  immediate  relief  to  the  country  centei* 
ing  at  The  Dalles  City.  This  is  now  in  ])rocess  of  ('onstnu*- 
tion. 

“Several  waterway  conventions  were  held  by  people  inter- 
ested in  opening  the  river,  which  finally  culminated  in  one 
held  in  Portland  Ai)ril  8 and  0,  1801.  This  (convention  resolved 
on  the  formation  of  a ('ompany,  with  a (‘a])ital  of  $2,000,000  to 
build  and  o])erate  portage  railways  at  Tlie  Dalfes  and  Cas 
cades  and  ])uild  and  run  steamboats  on  the  rivers.  This  (‘om- 
panv  has  not  yet  perfected  its  organization,  or  raised  its  capi- 
tal.^ (Abst.,  p.  1212.) 

“Everything  indicates  a general  and  widesi)read  belief  that 
with  the  ol)structions  at  dJie  Dalles  and  Cas(*ades  removed 
there  would  l)e  nothing  of  a serious  natui'e  standing  in  the 
way  of  cheap  watei*  trans})ortation  for  the  ])i‘odu('ts  of  the 
great  interior  regions. 

“So  important  and  so  vital  to  the  whole  s{cheme  of  utilizing 
these  rivers  is  the  removal  of  the  o])structions  at  The  Dalles 
and  Cascades,  and  so  utterly  useless  is  any  improvement  of 
an  extensive  character  to  the  u])])er  rivers  until  they  are  re- 


moved,  tlial  .1  am  constrained  to  recommend  that  no  work  of 
any  consequence  be  done  upon  these  upper  rivers  until  the 
^reat  obstructions  named  are  overcome  eitlier  by  the  con- 
struction of  a canal  and  locks,  a boat  railway  or  a portage 
railway  at  The  ])alles  and  tile  completion  of  the  canal  at  the 
Cascades. 

little  work  upon  that  portion  of  the  Snake  between 
Kiparia  and  Lewiston  now  navigated  will  be  advisable  from 
time  to  time  to  remove  rocks  hnd  boulders  brought  into  the 
channel  by  ice  and  freshets,  but  all  other  efforts  should  be 
concentrated  upon  The  Dalles  and  Cascades  if  the  rivers  are 
to  be  opened  and  any  general  benefit  derived  from  them. 

‘‘In  connection  with  the  proposed  possible  opening  of  the 
Columbia  and  Snake  liivers,  there  are  several  considerations 
which  it  seems  proper  that  I should  lay  before  you. 

“It  is  generally  supposed  that  the  Columbia  and  Snake 
above  Celilo  can  be  navigated  in  a commercially  successful 
way  in  about  their  present  conditions,  bettered  by  such  in- 
complete improvements  as  rock  removal,  bar  scrapings,  etc., 
as  contemplated  under  the  present  project. 

“The  Board  of  Engineers  having  under  consideration  the 
obstructions  to  navigation  of  the  Columbia  at  The  Dalles  and 
Celilo  Falls,  under  date  of  December  18,  1888,  state  that  the 
character  of  the  future  navigation  of  the  river  above  Celilo 
is  an  element  upon  which,  details  either  of  a boat  railway  or 
of  a canal  and  locks  depend;  that  no  complete  project  for  the 
river  improvement  has  been  made,  and  none  could  be  made 
without  a proper  survey;  that  a survey  is  indispensable 
to  determine  the  possibilities  of  navigation  of  the  upper  river, 
and  that  the  estimated  cost  of  this  survey  is  $40,000,  which 
ought  to  be  given  in  one  sum.’’  (Abst.,  p.  1213.) 

OTHEK  AMERICAN  RIVERS SLOPES  AND  FALLS. 

‘‘Ohio  River. — The  Ohio  Eiver  from  Pittsburg  to  Cairo 
is  967  miles  in  length,  and  has  a total  fall  of  426  feet,  of  which 
26  feet  are  overcome  by  locks  at  Louisville.  Leaving  this  26 
feet  out  of  consideration,  the  average  fall  of  the  Ohio  from 
Pittsburg  to  Cairo  is  5 inches  per  mile.  Even  with  this  fall, 
which  is  so  small  in  comparison  with  that  of  the  Columbia 
and  Snake,  the  project  for  the  improvement  of  the  Ohio  to 
secure  a minimum  depth  of  6 feet  contemplates  the  construc- 
tion of  68  locks  and  dams,  at  an  estimated  cost  of  over  $38;- 
000,000.  One  of  these  locks  and  dams  at  Davis  Island  was 
begun  in  1878  and  opened  for  navigation  in  1885.  Its  cost 
was  $910,000. 

“Great  Kanawha  River. — The  Great  Kanawha  Piver,  in 
West  Virginia,  from  Kanawha  Falls  to  the  Ohio  is  942  milcrv 


621 


long,  and  in  tliis  distance  has  a fall  of  1071)2  feet,  an  average 
fall  of  1 foot  and  1.7  indies  })er  mile.  The  project  for  tlie 
improvement  of  this  river  contemplates  tlie  building  of  12 
locks  and  dams,  at  an  estimated  cost  of  over  $4,000,000. 

'^Cumberland  River. — The  Cumberland  Kiver  from  Nash- 
ville to  the  Ohio  is  298  miles  long,  and  has  a total  fall  of  122.0 
feet,  an  average  fall  of  5 inches  per  mile. 

‘H\)lonel  Barlow’s  project  for  the  improvement  of  this 
stretch  of  river  consists  in  building  7 locks  and  dams  and 
some  channel  improvements,  at  an  estimated  cost  of  about 
$2,000,000. 

“Colonel  Barlow,  in  his  report,  after  mentioning  some  of 
the  rapids  and  shoals  in  the  river,  says : 

“ ‘Efforts  have  hitherto  been  made  to  reduce  the  fall  over 
these  shoals  and  thus  lengthen  the  season  of  navigation  by 
the  usual  method  of  wing  dams  and  channel  excavation.  This 
class  of  work  has  been  carried  as  far  as  seems  expedient  to 
continue  it,  and  the  results,  although  valuable,  do  not  satisfy 
the  interests  of  navigation;  a more  radical  improvement,  in 
keeping*  with  that  in  progress  on  the  river  above  Nashville 
being  demanded.’ 

"Kentucky  jRwcr.— The  Kentucky  River  from  the  Middle 
Fork  to  the  Ohio  is  258  miles  long.  In  this  distance  the  fall 
is  228  feet,  an  average  fall  per  mile  of  104  inches. 

“The  lower  95  miles  was  improved  years  ago  by  the  State 
of  Kentucky  by  the  construction  of  5 locks,  wdth  a total  lift  of 
78  feet. 

“It  was  estimated  in  1879  that  12  more  locks  would  be  re- 
quired to  reach  the  Middle  Fork,  the  estimated  cost  of  which 
was  over  $1,000,000.  (Abst.,  p.  1214.) 

“The  above  examples  serve  to  show  that  rivers  having  far 
less  slope  than  the  Columbia  and  Snake  can  not  furnish  ade- 
quate and  satisfactory  navigation  without  the  intervention 
of  locks  and  dams.  The  experience  on  these  rivers  cited  is  an 
additional  reason  for  the  survey  and  preparation  of  a com-, 
plete  and  consistent  plan  for  the  improvement  of  the  Colum- 
bia and  Snake  Rivers,  in  order  that  all  work  may  be  done  in 
accordance  with  the  plan,  and  tliat  money  may  not  l)e  inju- 
diciously and  unwisely  expended. 

“As  a means  of  comparison  the  slopes  of  a num])er  of  other 
rivers  which  have  been  largely  navigated  are  given. 

" Mississip'pi  River. — From  Cairo  to  the  Gulf  of  Mexico 
the  Mississippi  River  is  1,061.8  miles  long;  the  fall  is  280  feet; 
average  fall  8.2  inches  per  mile. 

"Missouri  River. — From  its  mouth  to  Sioux  City  the  Mis- 
souri River  is  808  miles  long;  the  fall  is  706  feet;  average  fall, 
10.5  inches  per  mile. 

“From  Cow  Island  to  Bismarck  the  average  fall  is  9.8  inches 


pel'  mile,  mid  from  J^'ort  HeTiton  to  (.^ow  Island  the  average 
In II  is  2.07  fe(‘t  per  mile. 

' ' Sdcrduicuto  liivcr. — From  lied  Bluffs  (head  of  navigable 
walei')  to  Snisnn  Bay  the  Sacramento  is  275  miles  long;  the 
fall  is  245  feet;  average  fall  tO.O  inches  per  mile. 

''Arkmisds  River. — From  its  mouth  to  Little  Rock  the  Ar- 
kansas is  170.4  miles  long;  tlie  fall  is  115.7  feet;  an  average 
fall  of  7.9  iiK'lies  ])er  mile. 

“From  Little  Rock  to  the  moutli  of  the  Canadian  River  the 
distance  is  249  miles,  and  the  average  fall  is  10  inches  pei* 
mile. 

''Aldbdvid  River. — Ph-om  Mobile  to  Wetum])ka  the  Alabama 
River  is  507  miles  long;  the  fall  is  117  feet;  an  average  fall  of 
5.8  inches  per  mile. 


EUROPEAN  RIVERS. 

“The  rivers  of  Russia  which  have  played  a great  part  in 
the  transportation  systems  of  t^ie  country  are  characterized 
by  a gentle  average  slope  and  current. 

“The  Volga,  from  the  Upper  Dam  to  Astrakhan,  is  2,184 
miles  long,  and  its  average  slope  is  4^  inches  per  mile. 

‘‘The  Don  for  594  miles  has  an  average  slope  of  4^  inches 
per  mile. 

“The  Oka  from  its  mouth  to  Kolomna  is  557  miles  long,  with 
an  average  slope  of  5f  inches  per  mile. 

“The  Moskva,  from  Moscow  to  Kolomna,  1104  miles  long, 
has  an  average  slope  of  5J  inches  per  mile. 

“From  Moscow  to  the  Caspian  Sea  the  combined  water- 
way of  the  Moskva,  Oka  and  Volga,  2,122  miles  long,  has  the 
remarkable  low  average  slope  of  2f  inches  per  mile. 

“The  Vistula,  655  miles  long,  has  a mean  slope  of  1.10  feet 
per  mile. 

“The  Danube,  from  Danausechingen  to  its  mouth,  is  1,710 
miles  long,  and  its  average  slope  is  16  inches  per  mile. 

“The  Seine  for  the  5484  miles  of  its  navigable  course  has 
an  average  fall  of  8 inches  per  mile.  (Abst.,  p.  1215.) 

“The  Rhine,  from  Imke  Constance  to  its  mouth  is  455  miles 
long  and  has  an  average  slope  of  2 feet  11  inches  per  mile. 

“The  Rhone,  from  Lake  Geneva  to  its  mouth  is  5274  miles 
long,  and  has  an  average  slope  of  3 feet  9 1/2  inches  per  mile. 

“Tn  both  of  these  latter  rivers  tlie  greater  portion  of  the 
fall  is  in  their  upper  courses. 

“Some  five  to  six  million  dollars  have  been  expended  in 
regularizing  the  Rhone,  with  very  unsatisfactory  results.” 


(12:5 


(\)LUMI51A  AND  SnAKK  ItlVEHS  ( 1 V ESIJ  M ED  ) . 

“Tlu'  (‘xistin^'  projcu'l  Tor  improving  tin;  lj})})or  (.'olunihia 
,jui(l  Snnko,  made  in  1877,  c()ntein[)latos  tlio  removal  oi'  rocky 
rei'l's  and  rock  honiders,  and  scraping  gravel  bars,  to  secui-e 
a low-water  channel  depth  of  df  feet  in  the  (■olumbia  and  iV 
feet  in  the  Snake  as  far  as  Lewiston.  It  is  (luestionable 
whether  the  proposed  chnnnej  can  be  secured  at  every  point 
by  the  means  adopted.  Past  experience  indicates  that  it  can- 
not. 

“From  Celilo  to  Wallula  the  river  is  navigale  all  the  year 
round,  as  far  as  depth  of  water  is  concerned,  for  boats  draw- 
ing of  to  4 feet. 

“From  Pi])aria  to  Lewiston  the  Snake  is  navigable  all  the 
year,  as  far  as  depth  of  water  is  concerned,  for  boats  drawing 
2 feet.  There  is  much  time  when  boats  drawing  more  than  2 
feet  would  have  great  difficulty  in  getting  up  over  the  bars, 
although  they  could  come  down  drawing  somewhat  more. 

“The  intermediate  stretch  from  Wallula  to  the  mouth  of  tne 
Snake  and  up  the  Snake  to  Piparia  is  the  worst  ])art  of  the 
river.  Over  this  stretch  boats  drawing  2 feet  can  only  pass,  as 
a general  thing,  about  4 months  in  the  year,  from  April  1 
to  August  1. 

“During  the  remainder  of  the  year  the  stretch  of  river  is 
practically  unnavigable  for  boats  drawing  2 feet.  During 
periods  of  high  water  much  greater  draft  can  be  carried  over 
all  portions  of  the  river. 

“It  is  unfortunate,  however,  that  the  periods  of  high  water  • 
occur  in  the  spring  and  summer,  when  the  crops  are  growing, 
and  the  periods  of  low  water  in  the  fall  and  winter,  after  the 
crops  are  harvested  and  their  moving  to  market  is  required. 

“The  result  of  the  work  which  has  been  done  on  the  river 
combined  with  other  causes,  has  l)een  during  the  })ast  10  or 
12  years  to  lower  the  river  at  governing  points  about  H feet. 
There  is  just  about  the  same  depth  of  water  at  low  water  over 
many  rapids,  etc.,  as  there  was  10  or  12  years  ago,  l)ut  the 
surface  is  lowered  about  If-  feet  on  the  gauges  used  by  the 
steamboat  men.  This  is  due  to  the  natural  wearing  away  of 
the  bottom  of  the  river,  to  the  work  done  by  the  Government 
and  perhaps  to  other  causes.”  (Abst.,  ]).  1210.) 

United  States  Engineer’s  Deport,  1905,  Vol.  VTT,  Part  3,  App. 
UU-9,  pp.  2455-6: 

“improvement  of  the  Upper  Columbia  and  Snake  Rivers, 
Oregon,  Washington  and  Idaho.” 

“During  December  and  until  January  14  the  dredge  was 
engaged  in  raking  and  dredging  Log  Cabin  and  Offields  l)ars, 
these  being  the  slioalest  points  between  Lewiston  and  Ri- 


])aria.  TJie  eontroliiiig  depth  on  tliese  bars  before  raking 
and  dredging  were  from  two  and  a half  to  three  feet,  and 
were  increased  to  four  and  a half  feet.  At  Offields  Bar,  some 
2,500  cubic  yards  of  gravel  were  removed  from  the  channel 
by  dredging.  On  January  14  the  dredge  waa  laid  up  at  the 
Lewiston  moorings  because  of  threatening  freeze  up  on  the 
river,  ^d  at  the  close  of  the  fiscal  year  still  is  out  of  commis- 
sion because  of  high  water.  No  work  has  been  done  on 
the  river  above  Lewiston  during  the  year. 

‘^Eegular  boats  have  operated  throughout  the  year  between 
Riparia  and  Lewiston  and  intermittently  above  Lewiston,  as 
far  as  Imnaha  during  moderate  river  stages.  In  June  of  the 
present  year,  on  the  occasion  of  the  opening  of  the  State 
portage  Railway — ’’  (Abst.,  p.  1203.) 

'‘Mr.  Starr:  By  the  way,  Mr.  Reeves,  perhaps  you  can  tell 
us  about  the  State  Portage  Railway.  AVas  that  the  railway 
around  the  falls! 

"Mr.  Reeves:  That  is  as  I understand  it. 

"Air.  Starr:  (Reading.)  In  June  of  the  present  year, 
on  the  occasion  of  the  opening  of  the  State  Portage  Railway, 
between  the  Falles  and  Celilo,  the  steamer  Mountain  Gem 
made  the  run  over  the  Snake  and  Columbia  Rivers  from 
Lewiston  to  Celido  and  return,  with  the  river  at  about  a 
9-foot  stage.  This  was  the  first  continuous  navigation  by 
steamer  over  this  stretch  for  some  23  years  and  was  made 
without  interruption. 

"The  river  and  harbor  act  of  Alarch  3,  1905,  appropriated 
$25,000  for  this  improvement  and  the  project  for  expenditure 
of  the  sums  provides  for  their  use  in  operating  the  dredge 
between  Lewiston  and  Imnaha,  making  repairs  to  existing 
dams,  in  blasting  out  rocks  from  the  channel,  and  in  making 
survey  between  Eureka  and  Pittsburgh  Landing,  which  had 
been  delayed  on  account  of  a lack  of  funds. 

"At  the  close  of  the  fiscal  year,  the  June  high  water  in  the 
Snake  River  is  receding  and  it  is  expected  to  begin  opera- 
tions with  the  dredge  early  in  July.’’  (Abst.,  p.  1203.) 

The  Columbia  and  Snake  Rivees — The  AVillamette,  Yamhill, 
Stikine  and  Yukon  Rivees. 

AVilliam  P.  Geay, 

a witness  for  defendant,  testified  as  follows : 

Direct  Examination. 

Aly  name  is  AYilliam  P.  Gray ; age  63  next  month.  I reside 
at  Pasco,  AA'ashington.  (Abst.,  p.  1506.)  Aly  life  business 
has  been  swift  water  steamboating.  Aly  last  work  was  on 


Snake  Iviv(‘r.  1.  be^an  swii't  water  boating  when  1 was  K> 
yeai-s  old  on  the  Fraser  Kiver  in  J>i’itish  (Jolnnibia.  I was 
operating-  batleanx,  with  niy  t'atber  of  eourse,'  above  where 
steamboat  mivig’atioii  ends..  In  tlie  winter  of  ] 850-1 801 , father 
and  I built  a sailboat  01  feet  long  and  12  feet  wide  at  the 
bead  of  the  Okanogen  River,  took  her  down  the  Okanogen 
and  (\)luin])ia,  River  to  tiie  C^elilo  Falls.  (Abst.,  p.  1500.) 
In  the  fall  of  1801  1 commenced  operating  on  Snake  Itiver, 
assisting  my  father.  I was  what  they  call  the  battean  man. 

1 went  in  a small  boat  and  carried  the  lines  up  ahead  so  as 
to  make  them  fast  to  rocks  and  stumps  and  then  we  would 
(‘any  the  line  down  and  the  large  boat  would  catch  hold  of 
them  and  warp  up.  In  that  way  I went  over  the  river  about 
three  times  every  trip  we  made  up.  In  1802  I was  running 
a sail  boat,  I was  captain  of  a sail  boat  on  the  Columbia 
River  from  Celilo  Falls  to  Wallula,  Washington.  In  1803 
I went  steamboating  with  my  father,  running  from  Celilo 
up  the  Columbia  to  the  Snake;  up  the  Snake  Eiver  to  Lewis- 
ton; up  the  Clear  Water  River  to  Lapwai.  Pasco  is  at  the 
junction  of  the  Snake  with  the  C_olumbia  River.  In  1801 
1 was  steamboating  on  the  Columbia  and  Willamette,  between 
Portland  and  Astoria  as  mate.  In  1805  I went  as  master  and 
])ilot  of  steamers  for  the  Oregon  Steam  Navigation  Company 
between  Celilo  and  points  on  the  Columbia  River  and  trib- 
utaries as  far  as  Lewiston  on  the  Snake  River  and  Priest 
Rapids  on  the  (5)lumbia.  (Abst.,  ]).  1500-7.)  1 continued  in  that 
business  for  two  or  three  years.  In  1807  I was  employed  by 
the  United  States  Engineers  as  assisTant  engineer  and  captain 
of  a schooner  to  survey  the  ra])ids  of  the  Columbia  River  be- 
tween Celilo  and  the  moutli  of  Snake  River,  doing  all  the 
soundings  with  a small  boat  myself,  sounding  all  ra])ids  ahead. 
In  swift  water  it  is  very  difficult  to  get  soundings.  We  have 
to  ])ut  a line  away  out  ahead  and  swing  the  small  boat  on  it. 
It  is  very  dangerous  where  the  water  is  swift  and  i*apid  and 
in  amongst  rocks.  In  1809  1 was  master  and  ])ilot  of  passen- 
ger steamers  by  the  Oregon  Steam  Navigation  Company.  In 
1870,  1871  and  1872  T was  master  and  y)ilot  and  part  owner 
of  tug  boats  on  the  Columbia  River  bar,  and  tributary  streams 
around  Astoria.  In  1873  and  1874  T was  in  the  l)utcher  biisi- 
ness.  In  1875  I went  on  the  Willamette  River  running  from 
Portland  through  the  locks  up  as  far  as  Harrisburg,  which 
is  the  extreme  limit  of  navigation  (Abst.,  ]).  1507)  and  also 
navigated  the  Yamhill  River  as  far  as  McMinville,  which  is 
only  navigable  about  two  months  in  the  year,  a small  stream. 
In  1877  I was  employed  to  take  a steamer  from  Seattle,  Wash- 
ington, to  Fort  Wrangel,  Alaska;  then  run  her  on  the  Stikine 
River,  which  runs — which  empties  into  the  bay  eight  miles 
above  Wrangel,  extending  ])ack  into  British  Columbia.  That 
is  considered  one  of  the  most  difficult  and  dangerous  to  navi- 


gale  on  llio  Xorlliwosteni  Coast.  I was  master  and  pilot; 
(lid  not  have  any  pilot  with  me,  done  my  own  piloting.  The 
man  that  went  up  next  year  sunk  her  the  first  trip,  hut  that 
was  none  of  my  business.  In  1871)  1 went  baek  to  work  for 
— hold  on,  I am  ahead — I went  Ijaek  to  work  for  the  winter 
on  the  Willamette  and  Yamhill,  and  in  1878  was  sent  for 
hack  again  onto  the  upper  Columhia  River  to  run  steamboats 
up  there  as  master  and  ])ilot.  1 don’t  know  of  anything  to 
say  about  the  government  boats.  In  1878  1 was  selected  to 
run  a [)atrol  boat  on  the  river  (Abst.,  1507)  carrying  troops. 
During  the  Rannock  Indian  War  1 patrolled  the  river  and 
ket)t  the  Indians  from  crossing,  and  made  it  possible  for  the 
troo])s  to  overtake  tliein  and  cai)ture  all  tlie  Indians  and 
ended  the  war.  In  1879  and  1880,  tlie  same  thing.  In  1880 
took  charge  of  transfer  l)oats  of  the  Northern  Pacific  Rail- 
road across  the  Snake  River.  I was  there  until  1884.  During 
1884  1 made  for  the  Oregon  Railway  & Navigation  Corn- 
])anv  a reconnoissance  of  the  river  of  the  Columbia  River 
above  Pasco,  in  which  the  rapids  had  been  declared  im- 
passal)le.  1 reported  that  it  was  possible  to  take  steam- 
boats u})  over  the  rapids  in  medium  and  high  stage  of  water. 
]\Iy  report  was  given  to  the  U.  S.  Engineers  and  is  embodied 
in  their  report  for  1884.  I worked  for  the  Northern  Pacific 
Railroad  Company  almost  continuously  until  1894.  In  1895  I 
brought  the  steamer  Norma  from  Huntington,  Oregon,  down 
through  the  Snake  River  Canyon  250  miles  to  Lewiston,  Idaho, 
where  I had  never  seen  the  river  before,  and  arrived  safely. 
In  1896  I was  operating  at  the  Cascades  of  the  Columbia  in 
swift  water  for  the  contractors,  handling  their  scows  and 
tow-boats.  (Abst.,  p.  1507-8.) 

The  contractors  were  building  locks  for  the  government 
around  the  cascades  of  the  Columbia,  a canal  and  locks.  In 
1897  I was  master  and  pilot  on  the  Columbia  River  between 
Astoria  and  Portland.  In  1898  I drew  plans  and  superin- 
tended the  construction  of  two  steamboats  with  the  Klondike 
Mining  Trading  Transportation  Company  of  London,  Eng- 
land. I built  the  boats  and  put  one  of  them— started  up 
to  Fort  Wrangel  with  one  of  them  and  had  a pilot  that 
ran  me  out  onto  a rock,  busted  it,  wrecked  it,  but  was  sent 
on  to  another  boat  u])  there  and  ran  her  that  season  for 
27  trips  on  the  Stikine  River  without  accident.  In  1899 
I fitted  out  a stern  boat  at  Seattle,  Washington,  took  her 
up  across  the  North  Pacific  Ocean  and  Behring  Sea  to  St. 
i\Iichaels,  took  a load  on  at  St.  Michaels  and  continued  on 
u])  to  Dawson  on  the  Yukon.  There  I met  a captain  who 
wanted  to  stay  in  all  winter  and  I wanted  to  go  on  out,  and 
I took  his  steamer  and  ran  her  u]^  480  miles  to  AYliite  Horse, 
which  is  the  head  of  navigation  on  the  U]:)])er  Yukon;  had  no 
pilot  on  it,  never  had  seen  the  river  before.  (Abst.,.  p. 


(\'27 

|).  ir)()S-!).)  ^riio  only  pl.u'o  1 had  a pilot  on  tli(‘  vvliolo  Iri})  fi-oni 
St.  Mi(*lia(‘ls  to  \V!iit(‘  lIoi-s(‘,  a distaiuai  of  ahont  niil(‘S, 

was  hO  miles  over  the  ^dikon  flat.  I retained  to  th(‘  Yukon 
during  1900  and  1901,  was  earried  out  on  a stret(‘her  that 
tall  and  refused  to  go  in. 

In  1902  1 was  engaged  by  the  Nortliern  Paeifie  to  run  a 
steamboat  on  l.ake  (\)eur  d’Alene,  and  the  St.  Joe  Itiver 
and  ran  there  until  1904.  Then  the  Northern  ITicifie  sent  me 
over  to  Lewiston,  Idalm,  to  run  a steamboat  in  swift  water 
where  tlie  otlier  boys  tliought  it  was  a little  dangerous. 

That  was  above  Lewiston,  up  through  what  they  call  the 
AVild  Goose  Kapids,  and  I ran  there  for  about  a year,  and 
in  1905  I made  a trip  down  over  the  Snake  River  and  the 
Columbia  from  Lewiston,  Idaho,  to  Celilo  to  the  opening  and 
dedication  of  the  Oregon-portage  railroad.  In  1906  I was  run- 
ning on  Snake  River,  carrying  supnlies  and  equipments  to 
the  contractors  for  construction  of  the  Spokane,  Portland 
& Seattle  Railroad.  (Abst.,  1509.)  Prom  1884  to  1890 
I was  captain  and  pilot.  Out  there  we  do  not  carry  any  pilot. 
The  captain  is  the  first  pilot,  he  is  supposed  to — from  1884 
to  1890  I was  in  the  employ  of  the  Northern  Pacific  in  charge 
of  their  transfer  across  the  Columbia  River  at  Pasco  during 
that  period,  six  years.  The  bridge  was  com])leted — well,  in  1888 
a company  of  peo])le  from  Ellensbnrg, — a captain  from  the 
Mississippi  River  induced  a company  to  build  a steamboat 
to  run  from  Pasco  up  the  Columbia  River  through  the  Priest 
Rapids,  Rock  Island  Rapids,  and  other  dangerous  rapids  to 
the  Okanogen  country,  where  there  were  mining  interests. 
Just  before  'the  boat  wccS  (‘om])leted  the  ('a])tain  went  u])  and 
made  a reconnoissan(*e  of  the  river,  got  cold  feet  and  left  the 
country.  The  com])any  built  that  boat  and  asked  me  to  take 
her.  I had  a lucrative  business  then  in  the  real  estate  busi- 
ness. I neglected  that  and  went  up  there  and  took  that  boat 
up.  In  1887  the  ().  R.  & N.  (k).  (Abst.,  ]).  1509.) 
manager  and  officers,  with  General  Gibbons,  then  department 
commander  in  AVashington,  with  120  soldiers  went  on  a steam- 
boat and  tried  fo  get  her  through — take  her  through  the  Ro(*k 
Island  Ra])ids.  They  got  right  into  the  Rock  Island  I\a])ids. 
They  are  on  the  Columbia  just  below  AYenatchee.  They  faihal 
to  get  through.  The  ca))tain  failed  them  and  1 took  it  and  took 
her  u})  through  the  rapids  220  miles  up  the  (k)lumbia  River 
onto  the  Okanogen  River  and  made  sevei'al  trips.  I took  the 
boat  up  there  and  made  a success,  and  they  are  now  running 
boats  np  there  above  these  ra])ids  regulai'ly.  It  is  dangerous 
to  take  a boat  over  there,  in  fact,  there  was  one  wrecked 
coming  down  last  year,  but  I never  had  any  ti'ouble.  f thiidc 
that  I am  conp)etent  to  nass  on  o])inion  on  the  navigability 
(Abst..  p.  1509-10)  of  swift  and  shoal  waters.  I have  seen  the 
Res  Plaines  River  from  Joliet  to  its  junction  with  the  Kan- 


kakee.  I have  been  in  (liicaigo  before,  in  the  fall 
of  1892,  from  July  to  the  27tli  of  December,  1892.  I 
was  in  the  real  estate  business.  1 never  saw  the  Des  Plaines 
J\iver  at  that  time.  1 was  a commissioner  from  the  State 
of  AVasJiington  to  the  AVorkPs  Pair.  The  first  time  I saw  the 
Des  Plaines  that  I remember  was  yesterday.  1 saw  it  from 
a ])oint  at  Joliet  and  the  Kankakee,  where  they  join  the 
Illinois,  make  the  Illinois,  in  my  opinion  the  Des  Plaines 
River  between  the  two  ]n)ints  that  you  have  named,  (Abst., 
}).  1510)  f Joliet  and  the  mouth  is  not  a navigable  river,  capable 
of  being  navigated  for  useful  purposes  of  commerce.  In  the 
first  place,  commerce  could  not  ])e  handled,  freight  could  not 
he  handled  on  that  river  in  competition  with  wagons  along- 
side, as  the  current  in  the  river,  shoals  and  rocks  and  bars, 
would  preclude  the  possibility  of  carrying  freight  enough  on 
boats  to  make  it  commercially  successful.  It  would  not  be  safe. 
As  I have  seen  the  river,  of  course,  there  may  be  some  flow  in 
it,  but  as  I see  it  now  there  is  not  depth  of  water  enough  to 
allow  boats  to  pass  over  with  safety.  The  form  of  construc- 
tion of  light  draft  boats  (Abst.,  pp.  I5I0-I)  is  such  that  their 
bottom  is  very  weak  on  account  of  having  to  be  buoyant. 
A small  obstruction  in  the  river  coming  in  contact  with  the 
bottom  would  break  a hole.  That,  of  course,  would  be  ex- 
pensive to  repair.  A slight  hole  of  six  inches  in  diameter  in 
the  bottom  of  a boat  would  cause  her  to  sink.  The  expense 
of — there  might  he  such  a thing  as  a skiff  or  something  of 
that  kind  being  taken  down,  but  commercially  I should  say 
that  it  is  not  practicable  at  all  to  navigate  the  river.  I 
determine  that  fact  by  my  knowledge  of  water.  (Abst.,  p. 
1511.)  I would  say  it  would  be  less  expensive  to  build  a 
steamboat  railway  around  the  outside  and  let  the  river  bed 
alone.  (Abst.,  p.  1511.)  It  could  not  be  navigated. 

Q.  You  have  stated  that  you  took  soundings  in  1867  and 
1868  under  the  survey  made  by  Colonel  K.  S.  AVilliamson, 
Department  of  the  United  States  Engineers.  Were  yours 
the  soundings  that  were  reported  as  the  soundings  of  the 
rapids  and  river? 

A.  AYere  thev  mine? 

Q.  Yes? 

A.  No,  sir,  I was  just — they  were  reported  by  Lieutenant 
Heuer. 

Q.  Are  those  the  soundings?  I call  your  attention  to 
the  volume,  part  five  of  the  annual  report  of  the  United  States 
Engineers,  United  States  Army  for  1891,  on  page  3214,  there- 
of, schedule  of  Snake  Eiver,  showing  slopes  per  mile,  and  ask 
you  whether  the  slopes  are  at  low  or  at  high  water,  or  at 
what  stage  of  the  river  as  given  in  that  report? 

A.  T cannot  say  positively  that  I know. 

Air.  Scott; — Pick  out  any  of  those  and  see  what  is  stated 


tliuro  and  tlieii  [)()ssibly  that  will  rerresli  your  mind.  This  is 
tlio  coluuiii  ot'  sloi)es  per  mile  and  lliere  are  diirerent  rapids! 

A.  1 recognize  all  those  re[)airs,  but  we  pay  (Abst.,  p.  1511- 
\'2)  no  attention  to  hgiires  in  steamboating.  The  slope  per  mile 
carries  no  meaning  to  a river  pilot,  lie  goes  and  he  takes  his 
boat  over,  judging  the  depth  of  water  by  observation,  what 
he  can  go  over  satisfactorily,  what  he  cannot  is — 

Q.  Now,  that  suggests  an  idea  to  me.  What  has  the  depth 
of  water  to  do  with  the  navigability  of  a river  at  places 
where  the  slopes  are  high! 

A.  The  deeper  the  water  the  better  yon  can  navigate  it,  and 
in  most  of  the  places  where  the  slopes  are  the  highest  the  water 
is  narrow  and  deep. 

Q.  Is  that  true  on  Snake  River! 

A.  In  places,  yes,  sir. 

Q.  Will  you  give  the  character  of  the  Snake  River  if  you 
can,  as  to  its  width  and  dei^th,  the  part  of  it  which  is  navi- 
gated! 

A.  On  the  shoals  between  Lewiston  and  Riparia  where 
navigation  is  being  carried  on  at  all  times,  the  river  is,  I should 
estimate,  say  between  700  and  800  feet  wide.  The  shoals  are 
— on  the  shoals  it  is  wider,  but  the  water  is  distributed  over 
those  shoals  in  such  a way  that  with  a boat  drawing  21  feet 
of  water  it  would  require  four  deep  depth  to  proceed  without 
touching  the  bottom,  as  at  the  break  of  shoal  she  will  tip  up 
the  weight  of  her — , of  course  where  there  is  a break  the 

weight  of  her  that  goes  out  of  water  will  bury  the  center. 

The  stern  wheel  which  is  digging  out  the  water  from  the 
(Ahst.,  p.  1512-13  bottom  is  digging  away  her  support.  Those 
two  actions  cause  tlie  center  of  the  boat  to  drop  and  go  down 
further  and  her  natural  draught  when  all  of  her  whole  bottom 
is  in  the  water,  conseciuently  we  expect  to  touch, — with  a 
boat  drawing  three  feet  we  expect  to  touch  center  on 

three  feet  six  inches  or  four  feet.  In  gravel  you  have  got 

a great  deal  more  surface  to  strike  your  l)ottom  than  you 
have — gravel  or  sand — than  you  have  where  it  is  rocks.  If 
you  have  rocks  or  boulders  they  are  isolated  points  and 
the  boat  will  go  with  more  speed.  She  won’t  have  so  much 
underpinning,  as  you  might  say.  She  strikes  those  rocks  and 
they  knock  holes  in  the  bottom.  On  gravel  tlie  blow  l)eing 
distributed  all  over  don’t  make  so  much  damage. 

Q.  Is  it  then  true  to  say  that  in  swift  water  if  you  have  a 
gravel  or  a sand  shoal  you  can  go  very  much  safer  and  more 
rapidly  than  you  can  if  there  are  boulders! 

(Objection,  overruled.) 

A.  Much  more  so. 

Mr.  Scott;  Do  you  know  the  depth  at  low  water  at  Little 
Pine  Tree  Rapids,  on  the  Snake  River!  (Abst.,  p.  1513.) 

A.  In  extremely  low  water  there  is  about  two  feet. 


030 


(^.  That  is  at  Little  IMiie  Tree  Slioals,  is  it  not? 

A.  Yes,  sir. 

ir^.  What  about  Jjittle  Pine.  Tree  Kapids? 

A.  Little  Id'iie  Tree  Kapids  are  from  six  to  eight  feet  of 
water  in  the  ehannel.  The  river  begins  to  rise  in  tlie  spring 
al)oiit  the  first  of  April.  Jt  does  not  recede  so  as  to  interfere 
with  navigation  until  about  the  first  of  August.  Prom  the 
first  to  tlie  middle  of  August  is  generally  the  lowest  water 
we  have,  and  then  it  is  low  from  the  middle  of  August  for 
about  two  months,  or  very  close  to  the  first  of  November. 
Then  we  have  the  fall  raise.  The  high  water  in  the  spring 
is  all  caused  by  melting  snows  in  the  mountains.  The  faii 
raise  is  caused  by  rains  which  fall  in  the  winter  time,  before 
they  are  frozen  and  turned  into  snow.  These  rises  in  the 
si)ring,  this  high  water  rises  to  (Abst.,  p.  1513-14)  a height  of 
sixteen  to  twenty  feet.  It  will  commence  at  the  first  of  April 
and  generally  about  the  last  of  May  or  the  first  of  June 
is  the  extreme  high  water.  It  will  gradually  recede.  It  is 
a gradual  rise  and  a gradual  receding.  Navigation  is  sus- 
})ended  at  about  eleven  inches  above  zero,  between  ten  and 
eleven  inches  above.  That  would  be  about — just  about  three 
feet  over  the  bars.  Aside  from  the  l)ars  we  have  all  the  way 
from  eight  to  twenty  feet  of  water  in  the  river.  There  are 
spaces  there  where  there  is  for  miles  we  have  from  eight  to 
twenty  feet  deep  at  low  water. 

Q.  Do  you  remember  what  the  velocity  of  the  river  is,  or 
have  you  any  accurate  information  as  to  that? 

A.  We  consider — of  course,  I have  no  accurate  information, 
(Abst.,  p.  1514)  but  it  is  generally  considered  that  the  velocity 
of  the  Snake  River  in  high  water  is  about  eight  miles  an 
hour. 

Q.  What  is  the  effect  of  the  raising  of  the  water  upon 
the  slopes  at  these  various  rapids'? 

A.  It  equalizes  the  slopes  so  that  the  surface  of  the  river 
is — that  is,  the  currents  are  distributed — the  current  is  dis- 
tributed. 

Q.  Does  that  mean  that  it  flattens  the  slope?' 

A.  Yes,  sir.  (Abst.,  p.  1514.) 

Q.  Captain  Gray,  you  said  you  were  in  the  real  estate  busi- 
ness in  Chicago  for  a year.  Were  you  selling  Chicago  real 
estate? 

A.  No,  sir.  I was  selling  Pasco  real  estate.  I am  presi- 
dent of  the  Pasco  Commercial  Club. 

Cross-Examination  by  Mr.  Starr. 

Q.  I think  you  said.  Captain,  that  you  began  work  on  the 
Fraser  River  in  British  Columbia? 

A.  Yes,  sir. 


(^).  you  were  tliirleeii  y(‘ars  old? 

A.  Yes,  sir.  (Absl.,  \).  1514.) 

Tlud  was  ill  185cS,  the  i'all  of  1(S58.  I was  ruiiniiig  a hat- 
teoii,  helping  my  father  to  run  i\  batteau  and  earrying  freight 
from  Murderers’  Bar,  wliieli  was  the  uiijier  end  of  the  steam- 
boat navigntion  to  Fort  Hope,  and  also  we  continued  from 
Fort  Hope  to  Fort  Vale,  through  the  rapids.  There  are  a 
great  number  of  rajiids  in  the  Fraser  River.  It  is  the  second 
river  in  size  on  the  coast  to  the  Snake  River — to  the  Columliia 
River.  It  empties  into  the  Gulf  of  Georgia,  which  empties 
into  the  Pacific  out  of  tlie  Straits  of  Fuca,  just  north  of  the 
Tilth  ])arallel.  The  total  length  that  it  is  navigated  from  its 
mouth  to  the  Canyon  "above  Yale  is  about  one  hundred  and 
thirty  miles,  may  be  more  than  that;  1 don’t  recall  the  exact 
distance,  it  is  so  many  years  ago.  It  is  entirely  on  the  Pacific 
slope.  TTiere  is  a pass  at  its  head.  (Abst.,  pp.  1514-15.)  The 
Canadian  Pacific  follows  it  down,  follows  down  its  north  bank 
now.  They  came  right  into  the  pass  and  into  the  V alley  of  the 
Fraser  River.  The  old  Hudson  Bay  route  crossed  the  Cas- 
cade range,  left  the  F''raser  River  at  Fort  Hope,  followed  the 
Samilkameen  and  crossed  the  Cascades  across  Manson  Moun- 
tain, Deer  Mountain,  and  over  to  the  head  whalers  of  the 
Samilkameen,  and  wdiere  the  Samilkameen  empties  into  the 
Okanogen  and  the  Okanogen  enpities  into  the  Ckilumbia.  That 
is  the  route  McDonald  followed.  He  came  through  while  I 
w^as  at  Fort  Ho|)e.  1 met  him  when  1 was  quite  a l)oy. 
McDonald  was  quite  an  elderly  man  at  that  time.  IVe  still 
continued  to  operate  by  batteaux  above  the  steamlioat  nav- 
igation of  the  Fraser.  (A!)st.,  p.  1515.)  The  length  of  bat- 
teau navigation  at  that  time  was  about  twenty-two  miles  alto- 
gether. The  width  of  the  river  at  that  stretch  was  from 
600  to  1,000  feet,  1 should  say.  There  were  several  ra})ids 
in  it.  The  Unum  Bdv  Rapid  was  a gravel  liar,  rather  shoal. 
In  low  water  there  was  about  four  feet  of  water  on  it.  We  went 
on  up  to  Emory’s  Bar,  which  was  a very  narrow,  swift  rapid, 
and  also  a very — the  channel  through  there  was  (piite  deep, 
])ut  it  wms  about  500  feet  wide.  (Abst.,  ]).  1515.)  Where  the 
water  runs  down  through  it  was  very  narrow;  it  run  tlirougli 
that  bar  in  a curve  and  followed  a cliff  around,  but  on  the 
other  side,  on  the  left  hand  side  going  u])  was  a })ig  eddy, 
the  current  flowing  around  there.  T don’t  sup])ose  the  current 
was  over  60  or  80  feet  wide  and  the  navigation  i^assed  through 
that  60  or  80  feet  strip  there.  I su])pose  at  that  one 
place  it  went  about  eiglit  or  nine  miles  an  hour  but  it  was 
just  short,  not  more  than  a counle  of  hundred  feet. 

The  next  principal  rariid  was  Hill’s  Bar:  it  was  (juite  swift 
and  there  were  large  lioulders  or  reefs  that  were  scattered 
around  through  the  river;  the  surface  of  the  river  from  bank 


to  ))Miik  was  about  (iOO  foot,  but  tlie  oliaiiuel^  wo  Jiad  to  go 
botweou  rocks  wliere  it  })rol)ably  wasn’t  more  than  fifty  or 
sixty  foot  wide.  I know  t was  wrecked  on  a small  boat  there 
once.  These  Pachfic  slope  streams  get  their  great  water 
supply  from  tlie  lofty  mountains  (Abst.,  ]).  1515)  and  are  quite 
thickly  studded  with  boulders  and  erratic  stories  and  cobbles 
that  come  down  the  stream.  That  was  true  of  the  Fraser. 
From  Hill’s  Bar  to  the  head  of  navigation  was  about  three 
miles  to  Fort  Yale.  Then  just  above  Fort  Yale  there  is  a fall, 
a canyon.  The  fall  is  right  in  the  canyon  with  a little  path 
on  the  outside  and  the  boats  and  batteaux  used  to  make  por- 
tages to  go  down  there.  They  carry  around  there.  They 
sometimes  would  shoot  the  boat  down  stream.  1 never  went 
over ; I have  heard  them  say  there  was'  about  eight  or  ten  feet 
fall;  I couldn’t  say.  I continued  in  this  batteau  navigation 
during  1859  and  part  of  1860.  The  batteaux  are  Hudson 
Bay  batteaux,  they  are  called.  They  are  very  flat  on  the 
bottom  and  have  flaring  sides,  and  they  are  sharp  at  both 
ends,  with  a flare;  both  ends  are  sharp.  (Abst.,  pp.  1515-16.) 
They  come  rather  high  out  of  the  water  at  each  end  so  as  to 
avoid  taking  water  over  the  freight,  wetting  the  freight,  and 
it  is  also  so  that  the  man  who  poles — they  pole  these  boats 
and  use  poles,  a man  in  the  bow,  they  have  a seat  right  in 
the  middle  and  he  guides  the  bow  and  the  man  in  the  stern 
holds  from  his  end  of  the  boat  also  and  he  guides  the  stern ; 
then  in  poling  they  have  a line  that  they  attach  to  the  end 
of  the  thwart  and  they  cordelle  up  that  bank  of  the  river  where 
it  is  swift.  I used  the  cordelle  method  in  going  upstream 
every  trip.  When  there  wasn’t  any  wind,  we  used  to  cordelle 
about  three-fourths,  well,  may  be  four-fifths  of  the  way.  And 
when  there  was  a good  wind  behind  us,  we  would  put  up  a sail 
and  carry  it  up.  (Abst.,  p.  1516.)  I think  my  batteau  was 
about  22  feet  long,  about  20  or  22 ; I would  not  be  sure.  The 
breadth  of  it  was  about  5 feet.  I would  carry  from  two 
to  three  thousand  pounds.  • The  freight  consisted  of  mer- 
chandise, supplies  that  would  be  used  in  the  mines,  beans 
and  coffee  and  groceries  and  food  of  all  kinds.  We  carried 
nothing  on  our  down  trip. 

Q.  And  how  did  the  size  of  your  boat  compare  with  the 
other  boats,  or  batteaux  that  were  in  use  there! 

A.  There  were  a great  many  canoes  used  there,  the  North- 
ern canoe,  the  Chinook  canoe  was  used,  and  also  the  Queen 
Charlotte  Islands  canoe  was  used. 

Q.  Well,  were  there  batteaux  of  this  generahtype  of  your 
boat  that  were  smaller  than  yours,  and  others  that  were 
larger! 

A.  My  father  built  two  boats  in  1858  which  were  small. 
We  run  them  until  the  winter  of  1858  and  1859,  then  he 
built  a boat  that  was  fifty  feet  long  and  seven  feet  wide.  We 


us(m1  luM' in  sai ai!(N'()r(l(‘irmi;'.  (Al)sl.,  p.  lalO.j  Sli(MJr(;vv 
al)oui  a Toot  ol*  watcn-  vvIkmi  s1i(‘  was  light,  and  loackMl  down 
to  about  two  toet  and  a halt.  She  woidd  carry  about  be- 
tween eight  and  ten  tons.  The  22-foot  batteau  would  (iraw 
about  two  feet  when  loaded.  The  fur  trade  route  ran  off 
to  the  south  of  us  a little.  It  left  at  Fort  ilope  and  crossed 
the  mountains,  following  a stream  callell  the  Coquilla  and 
went  across  the  Cascade  Range.  They  took  the  Samilkarneen 
to  go  down  into  the  strait.  I went  across  that  with  my 
father  in  1860.  They  didn’t  have  any  boats  on  the  Samil- 
kameen  River,  that  is,  a larger  boat  than  her.  I helped  father 
build  a sailboat  in  1860  and  1861,  when  we  left  Fort  Hope 
and  went  across  the  mountains  down  the  Samilkarneen  River, 
down  to  the  Okanogen,  the  head  of  the  (Abst.,  pp.  1516-17) 
Okanogen.  There  we  built  a boat  12  feet  wide  and  91  feet  long 
that  went  by  sails  and  a sweep  when  we  took  her  down  the 
river.  My  father  took  her  down  there.  She  went  down  the 
Okanogen  River,  we  called  it  60  miles  to  the  Columbia,  then 
340  miles  down  the  Columbia  to  the  mouth  of  the  He  Schutes 
River. 

Q.  Take  this  map  of  Washington. 

A.  Here  you  will  find  the  Okanogen  up  here;  there  is  the 
Osoyoos  Lake,  and  there  is  where  we  built  her,  right  in  there. 
Three  miles  from  the  British  Columbia  line.  That  is  Lake 
Osoyoos;  then  here  is  the  Samilkameen;  it  don’t  show  that, 
but  we  came  across  here  and  struck  the  head  waters  just  below 
the  south  fork  of  the  Samilkameen  and  followed  it  right 
down.  We  followed  this  line  that  has  ‘^Preston”  on  it  (Abst., 
p.  L517)  and  came  down  here  and  followed  over  here  (indicat- 
ing), and  stayed  there  all  winter.  We  just  traced  the  line 
from  Preston  to  the  lake,  then  we  followed  the  Okanogen 
River,  and  here  is  where  we  came  into  the  Columbia  at  the 
point  of  its  junction  at  a town  that  is  called  Brewster  now. 
We  followed  down  the  Colum])ia  River,  down  through  all  these 
rapids.  Here  is  the  Wenatchee  River. 

Q.  You  point  to  its  connection  at  a little  town  called 
Wenatchee? 

A.  Yes,  here  is  Rock  Island;  Rock  Island  is  right  there 
(indicating)  Rock  Island  Rapid. 

Q.  Yes,  it  is  labeled  so  on  the  map,  I see. 

A.  And  we  came  down  here,  here  is  Cabinet  Rapids,  a bad 
rapid  also  at  a certain  stage  of  the  water.  We  followed  down 
the  Columbia  River  across  the  Priest  Bapids,  and  from  Priest 
Rapids  clear  down  following  around  until  we  struck  the 
Oregon  line  and  down  as  far  as  the  He  Schutes  River,  and 
right  here  is  where  we  landed  at  that  time,  at  the  He  Schutes 
River. 

Mr.  Starr: — Mark  it. 


(i;!4 


A.  It  is  between  the  “R”  and  “B”  in  tlie  word  Oregon, 
away  down  to  your  left.  ’ 

'rile  (^ourt: — Down  tlie  C.^)lunib7a.  (Abst.,  pp.  ,1517-18.) 

A.  No,  down  here,  down  at  the  bottom  of  tlie  Oregon  line. 

Mr. -Starr:— On  tiie  Wasliington  map,  you  see  tlie  label  in 
tbe  wJiite  iiortlon  for  Oregon  of  a stream  named  the  l)e 
Seliutes  coming  north  I 

A.  That  is  where  we  landed.  Now,  in  1862  the  Oregon 
Steam  Navigation  Chmipany  built  a railroad  from  The  Dalles, 
the  City  of  Dalles  np  here  to  the  City  of  Celilo,  just  below 
De  Schutes;  it  liecame  the  town  of  Celilo. 

(^.  You  have  just  drawn  a line  indicating  it  on  the  Oregon 
sidef 

A.  Yes,  sir,  tliat  is  where  it  is. 

(^).  Coming  down  from  the  Okanogen  River  did  you  strike 
any  rapids  in  the  Okanogen! 

A.  b’here  is  wliat  they  call  McLaughrui’s  Falls,  McLaugh- 
lin’s canon  there.  McLaughlin’s  canon  creek  comes  out  of 
there.  (Abst.,  i).  1518.) 

Q.  .How  much  of  a fall  was  there! 

A.  Right  close,  just  above  the  mouth  of  that  canon  creek 
there  is  a fall  of  about  6 feet,  a ])erpendicular  drop.  5Ye 
shot  the  falls.  The  Okanogen  at  that  point  is  about  100 
feet  wide.  This  was  a 91  foot  boat  and  there  were  three 
men  besides  my  father. 

(().  AVell,  you  got  on  down  l)elow  and  came  to  the  Colville 
reserve ! 

A.  Colville  reserve,  yes,  sir. 

Q.  There  is  a falls  in  there  too! 

A.  There  was  no  such  thing  there. 

0.  No  the  reserve  had  not  been  laid  oft  at  that  time. 
(Abst.,  p.  1518.)  Do  you  remember  the  falls  in  .the  Colville 
reserve ! 

A.  There  is  no  such  falls  there;  there  is  a rapids  there. 

Q.  0 yes,  how  much  of  a rapids  is  there! 

A.  AVell,  they  have  taken  steamboats  over  there  in  the 
last  four  vears;  they  have  taken  them  up. 

Q.  Yes. 

A.  A steamboat  has  been  taken  right  from  the  mouth 
of  the  Okanogen  up  into  Osoyoos  Lake. 

Q.  YVhat  is  the  name  of  that  boat,  if  you  happen  to  re- 
call ! 

A.  I don’t  know;  I forget  it. 

Q.  AVhen  you  came  down,  the  old  Hudson  Bay  fort,  Okan- 
ogen, was  still  quite  a trading  post! 

A.  It  was  still  there  but  it  was  abandoned. 

Q.  The  Hudson  Bay  Company  had  retired  after  the  Ash- 
burton Treaty! 

A.  Had  left,  yes,  sir. 


(,j).  W'as  tluM'e  anything  any  [Xiopk*  tliore! 

A.  Ihiern  was  stoc'kade  there  yes;  the  stoc'.kade  was  there. 

Well  did  you  encounter  the  Downhig  Rapids!/ 

A.  1 don’t  know  anything  about  tlieni ; I don’t  renieinber 
that.  I renieinber  where  Lake  Chelan  comes  down,  d’here 
is  a rapids  there. 

Q.  ddiat  is  the  one  we  now  call  the  Downing  Rapids?  (Abst., 

pp.  1518-19.) 

A.  Yes. 

Q.  How  much  of  a rapids  is  that! 

A.  1 suppose  that  is  a five  or  six  foot  fall;  there  is  a 
cliff  on  the  right-hand  side  coming  down,  an  island  below, 
and  there  is  a shoal  water  runs  over  on  the  reef.  You 
have  to  stick  to  the  deep  parts  to  get  through.  We  shot 
that  fall.  That  was  the  first  time  that  I encountered  the 
Rock  Island  Rapids.  I have  been  through  that  fall  since. 
Kock  Island  is  a cliff’  that  puts  out  ou  the  left-hand  side,  prob* 
ably  thirty  feet  high,  perpendicular,  and  there  is  a bay  above 
it,  and  if  is  so  that  you  cannot  get  lines  around  it  to  pull 
through.  (Abst.,  p.  1519.)  That  Lone  Rock  is  some  distance 
below  the  rapids;  it  is  about  a mile  below  the  rapids.  The 
island  divides  the  channel;  it  seems  al)out  ecpially  dividing 
the  channels.  The  rai)ids  are  named  Hock  Island  from  an 
island  right  in  the  middle;  it  is  very  abrupt  and  then  there 
are  high  reefs  of  rocks  running  parallel  with  the  current 
down  below  and  about  half  way  ud  the  island  there  is  what 
they  call  Hobbsville  Point,  about  thirty  feet  high;  it  di- 
verts the  channel,  so  that  you  come  around  tliat  point.  It 
comes  at  more  than  a right  angle  the  water  coming  around 
this  way  and  you  have  to  be  very  careful  on  those  reefs 
below;  you  have  to  droj)  your  boat  right  down  close  to  this 
rock  underneath  so  that  it  makes  a very  short  bend  and  follow 
down  around  the  island  in  that  way.  It  is  not  possible  to  run, 
what  we  call,  “run  the  rapids;”  you  must  drop  your  boat 
down  through,  and  in  going  up — we  gauge  it  for  dropping, 
by  working  a wheel,  reversing  your  stern;  in  coming  u})  I 
had  to  i)ut  out  four  different  lines.  One  line  we  (Abst., 
pp.  1519-20)  had  to  i)ull  her  out,  to  work  along,  another  breast  . 
line  to  hold  her  bow  from  swinging  around  when  the  current 
caught  her,  another  at  the  stern  to  keep  from  going  too  fast 
and  another  at  the  stern  to  kee])  h^v  from  the  rocks. 

Q.  And  with  all  these  things  reversed,  you  could  drop 
her  down,  you  said! 

A.  No,  I put  out  those  lines  going  up. 

Q.  Oh,  you  put  the  lines  out  going  up! 

A.  And  in  going  down  I key)t  my  l)oat  in  the  clear  and 
reversed  her  with  the  wheel,  held  her  with  the  wheel.  The 
speed  of  the  current  at  that  place  is  not  over  six  miles  an 
hour.  The  narrowest  place  is  about — the  shortest  distance 


l)(‘l\veen  rocks  is  about  80  feet,  hut  hy  leiigtlieuiiig  tlie  eur- 
r(‘ut  we  make  it  more,  that  is,  we  drop  the  boat  down  and  let 
Jier  swing  as  1 am  holding  her,  and  when  we  get  ready  to 
shoot  in,  we  drive  her  into  a place  that  way.  That  width 
is  from  the  furthest  projecting  point  out  on  one  side  to 
the  furthest  projecting  point  on  the  other.  Those  Rock  Island 
Rainds  occupy  a reach  of  from  one-half  to  three-fourths  of  a 
mile  in  tlie  river.  (Abst.,  1520.) 

You  get  to  the  Cabinet  Rapids  shortly  below  there.  The 
Cabinet  Rapids  is  an  island  with  gravel  on  it,  a reef  on 
one  side  and  gravel  on  the  other  side  of  the  island.  In  high 
water  we  come  up  around  the  island  and  have  no  trouble; 
in  low  water  it  is  like  going  into  a box,  that  is  why  they 
call  it  the  Cabinet.  You  go  right  down  in  and  the  whole 
force  of  the  current  goes  right  into  that,  right  into  a trough 
or  into  a box,  so  that  you  have  to  hold  the  boat  and  let 
the  current  swing  her  around.  All  the  current  of  the  river 
goes  down  and  strikes  the  cliff  and  dashes  up  sometimes  six 
or  eight  or  ten  feet  and  runs  along  within  forty  feet  of 
the  shore;  on  the  other  side  will  be  an  eddy  and  you  have 
to'  drop  her  down  and  have  her  go  very  close  to  the  rocks 
or  hold  her  up  with  the  wheel  and  let  her  nose  drop  down 
by  until  you  get  her  straight  to  make  the  turn  holding  her; 
it  is  impossible  to  run  right  straight  down.  The  width  of 
it  in  the  part  where  you  can  run  your  boat  (Abst.,  pp.  1520-1) 
from  rock  to  rock  is  about  300  feet.  That  is,  between  pro- 
jecting points  on  each  side  of  the  stream.  But  the  current  is 
only  about  forty  feet  wide,  and  you  have  to  stay  in  that 
forty  feet  width  because  the  eddy  would  catch  us  and  drive 
us  out  of  our  course.  This  current  forty  feet  wide  makes 
a sharp  turn  dashing  right  against  the  cliff.  When  it  makes 
the  turn  I don’t  think  it  is  a right  angle  curve;  it  isn’t 
quite,  and  just  below  the  curve  it  goes  all  into  whirls; 
there  is  no  continuous  channel  below.  That  is  ‘^the  eddy.” 
We  called  it  six  miles  from  the  head  of  Eock  Island  Eapid 
down  to  the  foot  of  the  Cabinet  Eapids.  The  Dry  Kiln  Rapids 
don’t  amount  to  anything. 

Q.  Well  still  lower  you  come  to  the  island  rapids  (Abst., 
p.  1521)  ; there  is  another  rapids  some  distance  further  down 
called  the  Island  Eapids  before  you  get  to  the  Priest  Eapids, 
but  you  say  those  don’t  amount  to  anything? 

A.  I don’t  remember  them  to  amount  to  anything,-  because 
I never  paid  much  attention ; we  never  had  any  time  for  them. 

Q.  Well,  we  will  go  down  to  the  Priest  Rapids;  what  sort 
of  a rapid  is  that? 

A.  That  sir,  is — the  river  is  filled  from  one  side  to  the 
other,  I think,  from  water’s  edge  to  water’s  edge  is  from 
800  to  1,000  feet  wide  and  between  that  there  are  quite  a 
number  of  channels  in  between  reefs.  Where  they  go  over  that’ 


rooT  ihai  extcMuIs — a siu'C'essioii  of  i-oofs  (‘xtcaid  (‘l(‘ar  a('i-o.ss 
(lu‘  riv('r,  it  is  swift;  hetwoon  those  ])laees  it  is  not  very 
swift,  blit  the  reefs  overhi]);  we  go  down  through  one  i*(ief 
ill  OIK'  })la(*e,  then  we  have  got  to  ])ull  her  across  and 
drop  her  down  in  anotlier  ])laee  and  go  down  that  way,  and 
just  seem  to  veer-  across  that  way  until  we  get  down  to  tlie 
foot  of  the  ra])id  where  there  is  a great  fall;  it  is  almost — 
not  exactly  vertical,  but  it  is  a ])our  and  when  I was  there, 
there  was  a rock  but  the  Government  bad  improved  it;  there 
was  a rock  in  the  middle  wbicb  made  a very  heavy  swell,  lint 
tliat  can  only  lie  navigated  in  a medium  or  high  stage  of 
(Abst.,  p.  1521)  water.  At  the  time  we  came  down  there 
tlie  rock  was  still  there,  hut  it  has  since  been  removed.  \ 
understand  that  the  Priest  Eapid  is  nine  miles  long;  that  is 
what  we  considered  it.  At  the  lower  rapid  the  current,  in 
my  estimation,  is  about  12  miles  an  hour.  These  reefs  were 
the  native  rock  in  the  bed  of  the  stream,  basaltic  rock.  They 
didn’t  seem  to  catch  boulders  as  they  washed  down  the 
stream;  the  boulders  got  mashed  up  to  cobblestones  before 
they  got  there.  Our  boat  left  Lake  Osoyoos  on  the  tenth 
of  May  and  I don’t  remember  the  time  we  arrived  at  De 
Schutes;  probably — I couldn’t  tell  you;  I think  it  wasn’t  over 
twenty  days.  I made  the  journey  upward  from  the  Dalles, 
u])  to  the  lake  again  in  1888.  (Abst.,  p.  1521-2.)  [ run  the 

river  that  season  with  a steamer.  1 made  one  trip  from 
Pasco  to  Okanogen  up  to  Priest  Papids  and  the  Pock  Island 
Papids,  turned  around  and  made  four  trips  from  Okanogen 
to  Port  Eaton,  which  is  where  the  Chicago,  Milwaukee  & St. 
Paul  Pailroad  now  crosses  the  Columbia  Piver. 

Q.  "What  is  the  name  of  the  town"? 

A.  Port  Eaton;  I don’t  think  you  will  find  it  on  the  ma]). 
AVe  called  it  that  at  the  time;  it  is  just  a tenpiorary  name. 

Q.  That  is  up  above  the  Pock  Island  Pa])ids? 

A.  No,  it  is  just  below  Pock  Island  Pa])ids.  I don’t 
know  whether  you  will  find  Johnston  Canon  there  or  not. 

•Q.  They  call  it  Pyansburg! 

A.  Yes,  sir,  it  is  right  east  of  Crab  Creek;  you  will  find 
(Tab  Creek  on  the  map  there.  AVell,  it  is  right  on  the  other 
side  of  that;  I ran  from  Okanogen  down  there,  made  four 
trips ; then  I started  up  again  and  in  getting  over  these  Cab- 
inet Papids  my  engineer  made  a mistake  and  shot  me  into  the 
current  and  broke  the  line  and  throwed  a man  down  into  the 
water  and  broke  her  nose  right  square  off,  and  I had  to  haul 
her  out  and  in  hauling  out  I broke  the  capstan  and  turned 
around  and  went  back  and  run  down  over  Priest  Papids  to 
Pasco,  got  a new  captain  and  came  back  again.  (Abst.,  p. 
1522.)  Pasco  is  where  the  Snake  ])uts  into  the  Columbia.  The 
steamer  that  I took  through  there  in  1888  was  124  feet  long,  22 
feet  beam,  and  had  engines — 


(^).  W'lijit  was  the  indieated  horse-power  of'  tlie  engines? 

A.  Ten  inch  eyiinders,  three  foot  stroke,  very  small  power, 
120  })oiinds  of  steam  was  all  I carried,  so  that  you  can  figure 
it  out,  I am  not  an  engineer. 

A.  She  drew  about  two  feet  of  water.  She  carried, — the 
biggest  load  I had  on  her  was  about  fifty  tons. 

Q.  You  S])oke  of  the  railroad  coming  in  there;  it  is  a gen- 
eral fact  in  the  history  of  the  country  out  there,  (hiptain,  tliat 
after  they  got  those  railroads  all  ))uilt  tliey  didn’t  use  the 
i‘ivers  as  much  as  they  used  to  l)efore  they  liad  any  railroads, 
is  it  not? 

A.  Yes,  sir,  ])ut  they  are  running  boats  above  this  Rock 
Island. 

Q.  Now  they  are  using  boats  again! 

A.  They  are  still  running  them,  have  been  ever  since  I took 
that  boat  u])  there.  (Abst.,  |)p.  1522-3.)  My  freight  was  a 
miscellaneous  cargo  of  supplies,  groceries  and  supplies  for  use 
in  the  mines.  I was  carrying  ore  down  at  that  time.  Since 
then  tliey  have  develo]:>ed  the  wheat  industry  and  are  carrying 
tliousands  of  tons  of  wheat  every  year.  The  Celilo  Falls 
are  14  miles  above  the  city  of  The  Dalles,  in  the  Columbia 
River.  There  are  several  islands  in  this  stream,  both  above 
and  below  the  Celilo  Falls  and  in  the  river  all  the  way.  In 
high  water  there  are  no  falls;  there  is  quite  a rapid  but  there 
are  no  falls.  In  low  water  there  is  a fall  there  of  37  feet; 
it  is  in  the  form  of  a horseshoe,  falls  around,  the  reefs  come 
out  of  water  on  the  right-hand  side  and  the  reefs  form  a horse- 
shoe and  drop  right  into  a channel  right  close  to  the  Oregon 
side.  That  is,  the  cliff-  over  which  the  river  runs  has  washed 
l)ack  in  the  middle  where  the  deeper  water  is  and  the  greater 
amount  of  friction  on  the  rock.  (Abst.,  p.  1523.)  The  whole 
river  goes  through  there.  Take  the  front  of  the  horseshoe, 
where  the  deeper  passage  is,  leaving  out  the  two  side  places 
and  it  is  probably  300  feet  wide.  (Abst.,  p.  1523.)  I never* 
passed  a boat  around  these  Celilo  Falls.  I have  known  it  to 
be  done.  That  has  been  done  occasionally,  depending  upon 
the  condition  of  the  water.  The  Dalles  is  six  miles  below  the 
Celilo  Falls.  These  Dalles  are  the  places  around  which  the 
Portage  Railroad,  that  is  adapted  for  the  carrying  of  freight 
from  the  boats  below  to  the  boats  above,  has  been  built. 
(Abst.,  p.  1523.)  The  ‘‘Dalles”  in  the  Columbia  means  a 
wall,  walls  where  the  water  runs  through.  At  low  water  in  these 
Dalles  steamboats  have  been  taken  through  it  but  in  high 
water  I understand  the  Government  survey  makes  it  that  the 
whole  of  the  Columbia  River  runs  through  a place  there  185 
feet  wide,  and  when  there  is  a flow  of  water  the  current  is  not 
very  strong  through  there  because  they  have  sounded  down 
300  feet  and  didn’t  get  any  bottom,  but  when  the  flood  comes 
it  chokes  at  this  place,  and  one  year  we  had  a boat,  had  taken 


her  down  tlirougli  over  the  (Vhilo  Falls  and  tlu*  vvatehrnan 
kept  an  acH'ount  of  the  raise  in  the  wat(‘r  and  there*  was  a 
hundred  and  forty  foot  I’aise,  which  hacked  the  water  up 
and  destroyed  the  fall  at  (’'elilo.  Von  see  it  is  a choke*  in  the; 
rivei*.  I have  made  tri})s  iij)  the  Snake  River  itself  from 
Pas(*e)  all  the  way  u])  te)  Lewiston.  I first  maele  that  trip — we 
left  the  moiitli  of  the  Snake  River  on  the  11th  of  September, 
1S()1,  and  arrived  at  Lewistem,  being  40  days  ge)ing  up  the 
I'iver.  We  call  it  155  miles.  AVe  didn’t  go  epiite  four  miles  a 
day.  (Abst.,  p.  1528-4.) 

Q.  How  much  time  did  it  take  in  tlie  down  stream  trip  from 
Lewiston  to  Pasco  I 

A.  Coming  down  we  were,  I tliink,  about  four  days,  com- 
ing al)oiit  forty  miles  a day.  AYe  didn’t  run  at  night  either 
time.  It  wasn’t  safe  to  go  at  night.  The  Ainsworth  Bar  ex- 
tends out  from  the  AAmlla  AA'alla  county  side  of  the  river  and 
extends  up  above  the  incline  on  the  Ainsworth  side  until 
it  gets  right  opposite  the  old  south  Ainsworth  incline  and  then 
the  bar  extends  right  across  the  river,  bnt  there  is  a de- 
pression in  it  that  we  go  through;  I run  that  for  a good  many 
years.  The  depth  of  water  there  is  four  feet  and  a half. 
(Abst.,  p.  1524.)  I saw  it  when  the  ice  was  frozen  to  the  bot- 
tom and  1 was  stuck  drawing  three  feet  of  water  right  in  the 
ice.  That  was  about  the  lowest  that  they  had  there. 

Q.  Do  you  know  Ca})tain  Powell  ? 

A.  C’aptain  Powell  of  the  United  States  engineers!  Yes, 
sir,  I was  well  acquainted  with  him. 

(^).  He  s|)eaks  of  it  having  a minimum  depth  of  three 
feet. 

A.  AAYll,  he  got  it  some  time  when  they  didn’t  strike  the 
right  sounding.  1 can  show  you  a line  of  soimrlings  where 
they  will  show  ten  feet  on  the  (lovernment  survey,  and  1 will 
show  you  a dry  reef  sticking  out  of  water  four  feet. 

Q.  It  de])ends  somewliat  on  the  time  of  the  year  when 
they  take  it  and  the  condition  of  the  water! 

A.  They  take  the  sounding  at  high  water,  and  then  reduce. 
They  will  take  a sounding  when  tbei'e  is  six  feet  of  (Abst.,  ]). 
1524)  a raise.  If  they  get  nine  feet,  they  will  redu(*e  it  to 
three  feet;  that  is  the  way  they  get  a great  nmny  of  their 
measurements.  They  don’t  sound  in  low  water. 

Perrin’s  Defeat  is  light  at  the  head  of  Strawberry  Island, 
and  it  is  a narrow  reef,  extends  almost  across  the  river,  and 
the  channel  is  a little  iq'arer  the  bead  of  the  island  than  it  is 
over  to  the  right  liand  shore,  and  it  is  a short  break,  deep 
water  in  the  channel,  but  very  narrow.  It  just  comes  tbrougli 
a little  chute.  The  current  is  not  so  very  swift;  it  is  so  deep 
water  that  you  go  into  it  with  speed  and  carry  your  weight 
right  through;  if  you  stop  and  go  slow  it  will  buck.  The  cur- 
rent will  overcome  your  boat  and  it  will  come  back.  Y^ou 


luive  j>()t  to  l)()ttle  the  steam  to  make  it.  TJiat  is  a common 
(‘xi)i‘ession  amoii^>-  steamboat  men.  To  bottle  the  steam  is 
to  (‘boke  her  down  a little  and  get  all  the  steam  ii])  you  can  on 
the  boiler,  iiold  the  throttle.  (Abst.,  y)p.  1524-5.) 

Q.  Now,  what  amount  of  o})struction  would  that  ))rocess 
enable  you  to  overcome.  Captain?  Assume  that  vou  lia'd  a 
bout  goings  normally  in  tlie  method  you  have  described,  and 
being  overcome  by  a cun-ent  she  lays  back  and  bottles  tlie 
steam  and  shoots  tlirougb.  Take  a boat  that  with  lier  ordi- 
nary power  is  ecpial  to  making  liead  against  the  seven  inile 
current,  would  you  be  able  ])y  bottling  the  steam  to  overcome 
an  eight  mile  current? 

A.  Well,  tliat  is  owing  to  tlie  ])ower  vonr  engines  liave 
got. 

(}.  W ell,  I say,  take  an  engine  wliicb  witli  lier  ordinary 
load  under  ordinary  conditions  could  just  make  bead  against 
a seven  mile  current,  could  she  by  bottling  the  steam  make 
the  passage  through  a chute  of  that  kind  of  eight  miles  an 
hour? 

A.  No,  sir,  because  if  her  limit  of  speed  is  seven  miles 
an  hour,  that  is  all  you  can  drive  her,  but  if  you  have  got 
slack  water  below  she  will  come  up  with  tliat  speed  and  then 
her  momentum  will  carry  her  through  an  eight  mile  current, 
yes,  sir. 

Q.  That  is  what  I meant.  (Abst.,  p.  1525.) 

A.  Yes,  her  momentum.  ‘^Perrin’s  Defeat”  is  called  that 
because  he  went  up  there  with  a steamboat  and  couldn’t  get 
through.  He  took  the  boat  and  was  going  to  Lewiston  in 
too  low  water  and  he  struck  the  mouth  of  the  Snake  River 
and  the  first  rapid  he  came  to  he  quit.  That  was  in  1864. 
They  never  defeated  me  there.  That  never  was  known  as 
‘^Gray’s  Defeat.” 

Q.  There  isn’t  any  other  shoal  or  rapid  known  that  way, 
is  there? 

A.  They  have  got  one  place  there  they  call  my  defeat. 
W^elk  I went  up  to  a rapid  above  Lewiston  once  and  broke 
my  line,  broke  my  capstan  and  had  to  back  out.  (Abst.,  ) 

The  Court: — Is  that  the  time  you  told  us  about  this  morn- 
ing? 

A.  No,  this  was  one  trip  when  I was  making  a commer- 
cial trip  up,  and  they  called  it  ^‘Gray’s  Defeat.”  T broke 
everything  I had.  Asotin  is  just  six  miles  above  the  mouth  of 
the  river.  That  was  in  1904. 

T know  ‘‘Five  Mile  Eapid.”  That  is  just  five  miles  from  the 
mouth  of  the  Snake  River,  four  miles  from  Pasco.  (Abst., 
pp.  1525-6.)  The  name  is  because  of  the  distance  from  the 
mouth  of  the  river,  is  where  it  gets  its  name.  It  is  a short,  very 
rough  lookin.o',  a very  rough  place.  In  low  water  the  woter 
])ours  through  a low  lying  reef  and  meets  a reef  extending 


fill 


out  from  tlio  rigiit-liaud  side  eouiing  down,  also  a dry  reef 
on  the  lert-liaiid  side.  Tlien  as  you  gel  below  there  is  a reef 
fair  in  tlie  middle  of  the  channel  that  sometimes  goes  dry  and 
it  throws  the  current  at  a direct  almost  a direct  right  angle, 
and  it  is  a very  short  fall  tliere,  I think  tliere  is  about  eight 
feet  in  the  fall  in  a lengtli  of  about  300  feet.  WJien  it  becomes 
dry  we  do  not  stop  running.  We  dodge  into  these  holes 
and  take  our  spars  out  and  shove  ourselves  around.  Spar- 
ring through,  we  only  use  the  spars  to  push  us  out  into  the 
channel.  You  cannot  get  speed  enough  to  steer. 

You  go  up  the  river  and  you  come  to  Fish  Hook  Rapids.  I 
have  often  run  the  Fish  Hook  Rapids.  At  the  lower  end  of  the 
Fish  Hook  Rapids  there  is  a reef  in  the  middle  of  the  river 
with  a shoal  bar  probably  two  feet  of  water  in  the  channel 
off  to  the  left.  (Abst.,  p.  1526.)  In  the  deepest  channel,  and 
you  move  off  to  the  left  and  directly  over  to  the  right  it  goes 
around  a point  on  the  reef,  and  you  follow  up  through  the 
swift  water  and  gradually  draw  out  into  the  center.  And 
from  that  for  about  a mile  or  a mile  and  a half  it  is  one  con- 
tinuous succession  of  reefs  and  shoals  first  on  one  side  and 
then  on  the  other.  They  are  all  submerged,  just  under  the 
surface.  But  there  is  a channel  there  that  by  careful  manip- 
ulation you  handle  a boat  there.  These  submerged  reefs 
break  up  the  surface  of  the  water  into  hillocks  on  the  top  of 
the  stream  and  make  waves.  We  call  Fish  Hook  Rapid  a mile 
and  a half  long.  The  fall  there  is  in  the  lengths — we  had  one 
surveyor  that  made  it  17  feet,  and  another  that  made  ft  14 
feet,  and  another  that  made  it  23  feet,  so  you  can  form  your 
own  opinion. 

Q.  AYell,  by  and  by  you  get  to  Long  Crossing  Eapids,  you 
remember  those  of  course  1 

A.  Yes,  sir.  That  is  a shoal.  That  is  the  shoalest  place 
on  Snake  Biver.  It  has  an  island  (Abst.,  pp.  1526-7)  on  tlie 
left-hand  side  and  the  bar  makes  off  diagonally  across  the  river 
until  from  the  foot  of  the  island  to  where  it  joins  another 
part  on  the  other  side  is  all  of  a mile.  The  water  is  pour- 
ing or  dropping  over  this  bar  and  we  have  to  run  very  care- 
fully for  a little  bit  of  a sag  in  the  bar.  There  is  just  one 
place  where  we  can  get  through  by  manipulation.  In  the  little 
sag  it  is  about  three  feet  deep,  probably  not  in  low  water, 
there  isn’t  over  two  feet.  There  is  probably  six  inches  more 
in  this  sag  than  in  the  rest  of  it.  We  can  run  right  over  it 
when  the  water  is  up  two  feet.  Part  of  it  is  made  up  of 
gravel  just  about  the  size  of  your  two  fists.  It  is  ceiled  the 
Cobble  Stone  Bar.  (Abst.,  p.  1527.)  The  length  or, the  swift 
water  In  this  Long  Crossing  Kapids  is  only  probably  200  feet 
long,  but  the  bar  that  runs  across  is  probably  about  a mile 
long.  Those  Rescue  Island  Rapids  are  a number  of  basalt 
reefs  that  stand  around  promiscuously  and  it  is  pretty  hard 


to  work  llii’ou^li  lliejii.  ^riiro'e  is  an  island  in  the  stream  on 
the  lett-hand  side  goino'  iip,  hut  there  is  very  little  water  goes 
behind  it,  most  of  it  is  on  the  right-hand  side.  ^Jdiis  island, 
that  is  what  they  call  the  island  which  has  very  little  water 
going  behind  it,  that  is  a bed  I'ock  reef,  basalt  reef  that  ex- 
tends out  and  deflects  the  water  right  to  the  center  of  tlie 
island,  and  tliere  is  another  i-eef  that  stands  right  out,  right 
])er])endiculai'  and  the  ishuid  (‘rosses  on  one  side  over  to 
the  other  shore,  and  the  rapids  are  scattered  around  con- 
sidera))ly.  It  is  (luite  a (langerous  place.  That  Rescue  Island 
Rapids  (Abst.,  p.  1527)  is  between  a (juarter  and  a lialf  of  a 
mile  long.  It  lias  derived  the  name  from  an  accident.  There 
was  a ferry  boat  broke  a wire  line  out  at  Palouse.  The  ferry 
turned  over  and  the  man  that  was  running  it  got  on  top  of 
the,  out  on  the  bottom  of  his  boat  and  drifted  down  onto  the 
island,  and  he  had  been  there  a day  or  two  when  a steamer 
came  along  and  they  launched  a small  boat  and  went  out 
and  got  him.  It  is  a very  rough  place  in  high  water. 

It  is  not  so  far  above  that  before  you  come  to  the  Pine 
Tree  Ra})ids.  Pine  Tree  Rapids  is  veiw  similar  to  Pasco, 
except  you  follow  the  islands.  There  are  quite  a number  of 
islands  and  the  water  goes  around  the  channel  out  into  it,  and 
the  Government  has  blasted  a channel  through  there  which 
some  of  us  follow  now.  When  I went  through  it  there  had 
been  no  improvements.  We  went  with  the  boat,  the  widest 
place  we  could  find  when  we  went  through  there  with  the 
sail-boat  was  11  feet,  and  our  boat  was  12  feet  wide.  We  had 
to  get  a line  out  ahead  and  twist  her  along  and  lift  her  up. 
(Abst.,  pp.  1527-8.)  We  got  a line  on  the  other  side  and  twisted 
her  around  and  in  that  way  we  worked  her  up.  The  trouble 
was  to  get  a line  out  on  the  reefs  that  were  submerged.  The 
channet  was  pretty  straight  along  the  island,  but  it  has  been 
improved  by  the  Government.  In  the  early  days  in  ’65  when 
the  Colonel  Wright  used  to  carry  freight  from  Wallula 
up  to  that  island,  that  point  there,  and  then  there  was  a 
boat  up  above,  and  we  would  bring  the  freight  above  and  then 
carry  it  across,  make  a portage  of  it  and  carry  it  across  the 
island  to  the  boat  above. 

Q.  Tjans-ship  it  on  the  new  boat! 

A.  Yes,  sir,  I don’t  exactly  remember  how  much  depth 
there  was  at  Pine  Tree  Rapids  but  there  is  quite  a fall.  From 
the  hole  in  the  wall  to  the  foot  oT  the  island  it  was  about  three- 
quarters  of  a mile. 

Q.  Now  you  spoke  of  Palouse,  there  were  two  or  three 
Palouses! 

A.  There  is  the  false  Palouse  and  the  Palouse  Rapids. 

Q.  Take  the  false  Palouse! 

A.  Narrow  straight  deep  water,  not  very  strong  and  you 


CyU) 


have  to  dodge  a little,  dodge  tlie  (‘iinaait  a little  to  get 
llirougli.  (Abst.,  ]).  1528.) 

Q.  Tlieii  you  (‘oine  to  one  called  the  ski  ft  bar.  Do  you  re- 
ineiiiber  the  Skitf  Bar  Rapids? 

A.  Skiff  Iffiv,  yes,  all  that  re(piires  is  dodging  the  boul- 
ders. 

Q.  There  is  rather  a crooked  channel  there? 

A.  You  have  to  wind  around  and  dodge  the  boulders,  aver- 
age about  five  or  six  feet  of  water  there. 

Q.  Well,  you  get  to  the  Palouse  Rapids,  how  much  of  a 
rapid  do  you  have  there? 

A.  Well,  in  high  water  the  reef  extends  across  the  river, 
and  it  makes  a very  rough,  boating  whirl  and  it  twists  the  boat 
there  considerably  and  makes  that  very  difficult  for  steering. 
The  channel  is  about  80  feet  wide,  it  was  80  feet  wide  and  I 
had  the  Government  Engineer  take  off  about  40  feet  last  fall 
and  widen  it  so  in  high  water  it  would  not  be  so  rough.  The 
Monumental  Rapids,  that  is  below  Palouse,  and  it  is  a bar 
that  extends  right  out  on  one  side  to  the  reef  on  the  other, 
and  the  bar,  the  wash  of  the  gravel  from  above  encroaches 
on  the  reef  and  it  makes  it  very  difficult  and  dangerous.  By 
the  twisting  from  the  bar  you  are  (Abst.,  pp.  1528-9)  liable  to 
knock — on  the  reef  you  are  liable  to  knock  a hole  in  the  boat 
or  go  on  the  bar  and  get  ashore  and  it  is  probably  a thou- 
sand feet  from  the  shore,  out  to  this  narrow  channel.  You 
have  to  steady  your  boat  and  it  is  quite  swift  in  low  water. 
I have  run  those  rapids,  I could  not  tell  you,  two  or  three 
hundred  times  1 have  been  over — thirty  times  in  a season, 
that  is  in  the  extreme  low  water,  but  during  the  season  I 
used  to  make  a trip  a week  there  for  years.  In  the  extreme 
low  water  you  have  to  ]mt  a line  out  and  hitch  it,  pull  your- 
self through  with  the  line  and  the  ca])stan. 

The  Texas  Rapids  is  a wild  looking  place  but  it  is  like 
some  peo])le,  it  ain’t  as  dangerous  as  it  looks.  Tt  is  about  a 
mile  long.  Tt  is  about  a fifteen  foot  fall,  I would  judge  that. 
In  the  head  of  the  ra])ids  the  channel  through  there  has  reefs 
that  divert  (Abst.,  1529)  the  channel  and  twist  it  around  con- 
siderably, and  then  afterwards  it  goes  over  what  they  call 
Roll  Rock.  Then  there  are  reefs  or  a low  ridge  in  tlie  cen- 
ter of  the  channel,  and  from  the  center  you  go  from  one  side 
'to  the  other  and  the  water  is  (piite  rough,  but  by  cai'eful 
steering  a man  gets  down  without  any  trouble.  Running  up 
stream  it  is  very  strong,  T have  had  to  do — what  do  you  call 
it  double  teaming,  double  leading  over  it.  T have  had  to 
put  out  a part  of  the  load  and  take  it  up,  then  come  back 
and  take  the  other  part  of  it  over.  Tt  would  take  going  u]) 
stream  to  run  through  those  Texas  Ray^ids  just  about  half 
an  hour  from  the  foot  to  the  head,  about  a mile. 

Q.  When  you  are  making  time  up  stream  at  the  rate  of 


Iietwecn  three  and  four  miles  an  liour,  you  did  not  make  this 
ndle  and  a iialf  or  mile  and  a quarter,  wliicliever  it  was? 

A.  AVel],  we  was  all  day  getting  through  the  Texas  Eapid, 
and  the  Pine  Tree  we  was  two  days  getting  through. 

ii.  You  mean  it  has  now  been  improved  to  such  a degree 
that  you  are  able  to  make  it  in  from  half  an  hour  to  an  hour! 

A.  Yes,  sir. 

(^).  But  in  its  native  condition  it  took  you  a day  to  go 
through  it  and  two  davs  to  go  through  the  Pine  Tree!  (Abst., 
l)p.  1529-80.) 

A.  Yes. 

(^).  Do  you  remember  Granite  Point! 

A.  Yes,  sir. 

(^).  Do  you  remember  the  rapids  there! 

A.  Yes,  sir. 

(^).  How  much  of  a rapid  was  there  at  Granite  Point! 

A.  It  was  not  dangerous  at  all,  there  are  several  granite 
boulders  that  stand  out  close  to  the  channel  and  make  a break, 
it  is  only  dangerous  in  the  night  time.  In  low  water  those 
boulders  there  require  close  steering,  that  is  all.  The  ivater 
breaks  over  the  top  of  thepi.  The  water  breaks  over,  they  are 
right  at  the  surface,  of  the  water,  there  is  plenty  of  water  in 
the  channel.  In  making  those  trips  from  time  to  time  you 
strike  these  places  where  the  water  breaks  over  them  and 
makes  waves  and  hillocks.  There  are  places  in  low  water 
where  the  boulders  stick  out  through  the  water.  You  can 
see  something  like  that  at  every  one  of  these  rajjids  where 
the  boulders  are  present  in  low  water. 

Q.  When  was  the  first  trip  made  up  the  Columbia,  up  from 
Celilo  to  Lewiston  that  you  know  of!  Abst.,  p.  1530.) 

A.  We  heard  when  we  were  living  at  the  foot  of  Osoyoos 
Lake  that  a steamer  had  gone  up  the  Snake  River  in  1860! 

Q.  When  was  this  first  trip  up  there! 

A.  1861. 

Q.  Do  you  know  Captain  White! 

A.  Do  i know  Captain  White! 

Q.  Yes! 

A.  Captain  Lem  White,  I know  him  well. 

0.  He  was  the  only  man — 

A.  He  was  the  man  that  took  the  first  boat  up  there. 

0.  Do  you  remember  his  boat,  the  Tonino! 

A.  Yes,  sir. 

Q.  That  is  the  boat,  is  it! 

A.  Yes,  sir.  With  reference  to  Lewiston,  the  Great  Sho- 
shone Falls  must  be  400  miles  south.  I have  never  been  there. 
They  are  on  the  Snake  River.  The  main  channel  of  the  Snake 
River  comes  up  from  the  south  to  Lewiston  and  turns  oft  to 
the  northwest  there.  Away  down  somewhere  on  the  line  be- 


ur> 

tweon  l(lalu)  and  Ulali  am  the  Shoshone  Falls.  (Ahst.,  ]>. 

hm) 

Q.  You  speak  of  a report  of  yours  as  being  embodied  in 
the  United  States  Fngineer’s  Keport  for  1884.  I show  you 
Uaptain,  United  States  Fngineer’s  Ileport  under  tiie  liead- 
ing  of  Report  of  Captain  Powell,  Appendix  (^)4,  Improve- 
nient  of  the  Upper  Columbia  and  Snake  Rivers,  Oregon  and 
AVashington  Territory,  Annual  Report,  Chief  of  Engineers 
United  States  Army,  Part  III  for  1884.  Look  at  that  and  tell 
us  whether  this  is  the  report? 

This  is  the  report  beginning  on  page,  the  particular  one  I 
have  directed  your  attention  to  beginning  on  page  2229  and 
you  have  now  turned  over  to  page  2243. 

A.  This  appears  to  be  dated  February  26,  1884,  and  prob- 
ably— I made  mv  examination  of  reconnoissance  in  June  and 
July,  1884,  it  probably  was  not  in  there.  (Abst.,  pp.  1530-1.) 

Q.  You  spoke  of  being  employed  in  ’67  by  the  United  States 
Engineer  to  survey  a rapids  in  the  Snake? 

A.  In  the  Columbia. 

y.  In  the  Columbia.  AVho  was  the  engineer  uncker  whom 
you  took  employment  at  that  time.  Captain? 

A.  Colonel  Williamson,  Colonel  R.  S.  Williamson  was 
in  charge  of  the  Pacific  Coast  as  Chief  Engineer  and  Lieu- 
tenant Heuer  wms  in  charge  of  the  survey  work.  Lieutenant 
W.  H.  Heuer. 

Q.  Y^ou  spoke  of  a number  of  trips  that  you  made  on  the 
YVilliamette  River? 

A.  Y"es,  sir.  I was  runniug  on  the  AVilliamette  River  in 
1875,  and  last  in  the  spring  of  ’78.  The  rapids  on  the  Wil- 
liamette  River; — well,  there  is  the  Clackamas  Rapids,  at 
Oregon  City,  where  the  old  P.  T.  Company  had  built  a dam 
across  a slough  in  order  to  throw  the  water  over  a gravel 
bar  and  allow  their  boats  to  go  up.  This  was  on  the  left  bank 
they  built  the  dam.  The  channel  off  from  the  mouth  of  the 
Clackamas  River  filled  up  and  they  hi  owed  out,  hi  owed  a hole 
in  the  dam  on  the  left  bank.  YYe  follow  through  close  to  the 
shore  to  the  foot  of  the  island  and  follow  up,  run  up  the 
Abst.,  pp.  1531-32)  tail  race  up  to  the  dam  and  go  through  the 
dam  that  is  broken.  When  the  water  is  at  low  tide  you  have  to 
put  out  a line  up  to  the  point  of  rock  ahead  and  line  through. 
Then  after  you  get  in  that  you  are  in  a pool  and  you  go 
around  up  past  Oregon  City  and  go  into  the  Oregon  City 
locks. 

I was  never  up  there  before  the  locks  were  built  there  at 
Oregon  City.  T was  up  there  in  1864,  hold  on — T think  it  was 
1865  I was  up  there  on  a trip. 

I don’t  know  whether  there  had  been  any  improvements, 
I was  just  on  an  excursion  and  I didn’t  pay  any  attention  to 
the  improvements.  There  were  no  locks  there. 


judgment,  there  is  a})out  between  tliree  and  four  feet  of  a fall, 
in  the  length  of  the  rapids,  about  half  a mile.  There  is  quite 
a shoal  ])laee  over  the  bar  until  they  broke  a hole  in  the  ar- 
tifieial  dam.  After  that  there  was  plenty  of  water.  (Abst., 
p.  1582.) 

When  you  get  through  there,  there  isn’t  rmieli  water  there, 
there  is  no  water  for  steamboats,  there  is  probably  about  two 
feet  of  water  over  the  natural  dam. 

But  this  artificial  dam  that  they  put  in  and  took  out  again, 
left  the  hole  in  it,  there  is  about  6 feet  of  water  there. 

That  had  been  done  to  throw  all  the  water  into  this  nat- 
ural channel.  They  wanted  to  straighten  it  but  they  found 
they  had  to  go  around,  it  is  a crooked  channel. 

I just  made  one  trip  up  there  wuth  a boat.  I did  not  know 
which  way  they  went  when  the  water  was  high,  I paid  no  at- 
tention. 

That  was  a steamboat  in  1865  I believe.  I was  last  on  the 
river  during  the  period  from  1875,  but  the  steamboats  had 
gone  on  through  there  during  that  period.  (Abst.,  pp.  1582-3.) 

The  Yamhill  River  was  navigable  just  about  two  months  in 
the  year.  Dayton  is  the  low  water  head  of  navigation  where 
tliey  run,  where  the  bar  is  formed  by  the  emptying  of  the 
Yamhill,  and  for  about  two  months  in  the  year  we  run,  or 
about  one  month  of  the  year  we  run  to  McMinnville.  I used 
to  run  from  Portland  every  other  day  to  Dayton  in  extreme 
low  water,  for  several  months.  Then  we  ran  as  far  as  La- 
Fayette.  (Abst.,  1533.)  The  mouth  of  the  river,  the  mouth 
of  the  Yamhill  River  there  was  about  three  feet  and  a half 
of  water,  that  is  at  times  it  falls  off  and  is  shallower  and 
then  they  have  got  to  dredge  it,  put  a steamboat  in  there  and 
dredge  it  with  the  wheel.  The  current  of  the  Williamette 
running  by  the  Yamhill  wmuld  stop  the  sediment  there.  Then 
they  would  tie  a steamboat  in  there  awhile  and  work  her 
wheel  and  that  wheel  digs  it  out.  Just  by  revolving  the  power- 
wheel  that  would  stir  it  up  and  the  wuater  would  carry  it  off. 
(Abst.,  p.  1533.) 

The  Stikine  River  in  Alaska,  the  lower  part  is  sand  and 
drifts  there^  a great  many,  a great  deal  of  trees  and  logs. 
In  ’77  I left  Fort  Wrangel  on  the  28th  of  April  and  ran  to 
Glenora  the  first  of  May,  following  the  ice  up.  As  the  ice 
melted  and  got  out  of  the  way  we  kept  on  going.  It  is  150 
miles  up  there. 

The  delta  of  the  river  is  four  or  five  miles,  but  just  the  chan- 
nel that  we  go  through  is  probably  about  three  feet  wide. 
There  are  several  islands  formed  all  the  way,  and  at  one 
place  up  at  what  we  call  Hudson  Bay  Island,  or  Hudson 
Bav  flats,  the  river  is  continually  changing  going  up,  never 


i>o  up  oil  ilio  same  (‘liaiiiiol.  It  is  like  a drift  and  a liol(‘,  tin? 
gravel  and  sand  will  lodge  and  then  it  will  (tliange  eliarinel 
and  go  around  another  way  and  yon  have  got  to  [)i(;k  yonr 
ehaniiel.  Then  yon  get  ii})  to  the  ('anon  whichi  is  about  HO 
miles  np;  the  river  ('haiiges  above,  but  there  is  not  so  mueh 
sand  and  it  is  more  })ernianent.  (Al)st.,  1534.)  It  lias  n i*o('ky 
bottom  wlien  yon  get  nj)  and  lioniders,  yes,  plenty  of  them. 
Well,  the  shoalest  stretch  of  water  when  yon  got  up  to  the 
honider  on  that  run  was  about  between  four  and  five  feet. 
I built  two  boats  for  that  in  the  spring  of  1898,  for  a Klon- 
dike Mining,  Trading  and  Transportation  Company.  I went 
up  in  1877  first,  some  twenty  years  before  tiiat.  The  boat  1 
took  up  there  on  the  first  trip  in  1877  was  about  125  feet  Jong 
and  24  feet  beam.  She  drew  about  22  inches  Jight.  She  had  a 
pair  of  14  inch  cylinders  4 foot  stroke.  I do  not  know  the  ex- 
act horse-power.  The  Stikine  Biver  is  continuous  rapids. 
(Abst.,  p.  1534.)  The  Grand  Rapids  are  np  about  29  miles  the 
other  side  of  Glenora,  the  river  takes  a turn.  Well,  in  com- 
ing down  the  river  strikes  a sandstone  bluff  and  comes  on  down 
a little  further  about  a quarter  of  a mile,  following  around  the 
island  bar — there  has  been  a glacier  off  on  the  south  side  and 
it  gradually,  the  wash  from  the  glacier  is  gradually  filling  in. 
Well,  that  fills  in  and  when  the  water,  there  is  a hard  boulder 
bar  that  it  is  hard  to  wash,  don’t  wash,  has  formed  an  ob- 
struction so  that  it  throws  the  water  right  back  under  this 
moraine  of  the  glacier  and  it  turns  (piick  to  the  left  and  then 
goes  right  in  under  the  gravel  and  hank  filled  with  sand  and 
gravel  and  boulders.  It  makes  a shar])  turn  into  it  and  when 
it  strikes  that  then  turns  it  hack  to  the  right.  It  makes  almost 
a Z with  a sliai*])  corner  and  you  would  have  to  dro])  your 
boat  just  as  ('lose  to  tli(‘  bar  r.s  you  can  and  let  Iku*  hang  on 
this  bar  until  you  pull  her  arouird  a('r()ss  the  bar  so  you 
('an  go  down  and  go  off,  go  over  on  the  other  bar  and  ])ack 
that  way.  The  current  tliere  is  about  twelve  miles  an  hour. 
No  boat  ever  went  tlirongii  without  a line  tlunx^.  (Abst.,  p}). 
1534-5.)  I think  the  Ih'iest  Rapids  is  a little  the  strongest, 
hut  it  is  the  dee])est  and  the  water,  we  get  moi'e  ])ower  than 
the  Stikine,  the  dee])er  the  water  the  inoi'c  ])()wer  it  has  got. 
The  Stikine  is  shallow.  Where  that  comes  around  the  Z on  tlu^ 
Stikine  at  the  npi)er  coimer  it  is  ])r()l)ahly  eight  oi*  ten  feet 
deep,  then  as  we  get  down  to  the  next  corner  with  the  water 
on  the  right,  it  goes  over  towards  the  island  and  it  is  gravel 
there  about  ‘I  feet  decg),  and  from  the  point,  ()V(‘r  right  in 
the  corner  it  is  pro])al)ly  six  feet  dee])  and  right  across  tlien 
as  it  goes  down  right  along  the  side  of  the  per- 
pendicular hank,  per])endi(udar  to  the  ('ut  there  the 
water  is  ten  or  twelve  feet  dee]).  That  is  the  Grand 
Rapids  of  th(‘  Stikine.  There  are  quite  a number  of 
shoals  up  above  there.  You  have  to  wind  around  through  il 


to  i»()  up  the  eliariiiel.  Tlien  you  Jiuike  several  very  short 
turns.  You  go  over  next  to  the  right-hand  bank  and  then 
follow  around  until  you  are  finally  (Ai)st.,  p.  1535)  at  the  left- 
hand  bank  and  work  between  the  islands.  After  you  get 
through  the  sand,  it  gets  lower  down  to  the  gravel,  and  you 
have  to  follow  along  very  close  to  the  growing  trees.  The 
trees  almost  overhang  and  you  have  to  look  out  for  them 
or  they  will  take  off  your  upper  works.  You  have  got  to 
handle  her  very  carefully  for  the  snoal  water  or  the  boat  will 
run,  what  we  call  run,  and  then  just  as  you  get  up  to  the  head 
it  is  very  shoal.  If  she  turns  off'  she  will  run  ashore,  cannot 
turn  around.  It  aint  wide  enough  to  turnaround,  she  would 
go  ashore.  I liave  done  that  two  or  three  times  myself,  get 
over  there  and  the  water  would  catch  her  and  throw  her  onto 
the  bank.  Then  you  have  got  to  spar  and  work  off  the  little 
shoals,  if  you  are  shoal  aft  more  than  it  is  forward,  you 
have  got  to  line  out  and  pull  her  off  into  the  current.  This 
Grand  Eapids  Shoal  above  there,  makes  a ridge  in  (Abst., 
1535)  the  river  from  below  the  foot  of  Grand  Rapids  to  above 
the  island  shoals,  probably  four  miles.  I don’t  think  it  falls 
as  much  as  the  Priest  Rapid,  (which  he  calls  12  miles  an 
hour,  p.  3960,  supra)  but  much  more  than  the  Palouse  (it  has 
a fall  of  four  feet  to  the  mile  according  to  Engineer’s  Report 
of  1884.)  In  ’77  my  boat  was  carrying  supplies  to  the  miners, 
carrying  mules  and  animals  up  in  there  to  the  Cascera  mines. 
They  were  mining  gold  there  in  ’77  and  had  been  mining  for 
several  years. 

Q.  That  goes  clear  up  to  White  Horse? 

A.  No,  sir,  that  is  a different  river.  (Abst.,  pp.  1535-6.) 

Q.  That  is  a different  river.  Have  you  ever  taken  a boat  , 
up  to  White  Horse  on  the  Yukon? 

A.  On  the  Yukon,  yes,  sir. 

Q.  Well,  now  then,  what  is  the  condition  of  the  Yukon 
up  there  at  White  Horse? 

A.  Well,  it  is  the  Yukon  it  is  considered,  they  call  it  now 
the  head  waters  of  the  Yukon  at  White  Horse,  but  up  there 
they  call  it  Fifty  Mile  River.  It  empties  in  about  30  miles 
below  White  Horse,  empties  into  Lake  La  Barge  and  Lake 
La  Barge  empties  into  Thirty  Mile  River  and  the  Thirty  Mile 
River  empties  into  the  Hootalinqiia  and  the  Hootalinqua 
joins  the  Pellee  at  Selkirk  and  makes  the  Yukon.  Take  the 
Fifty  Mile  River  where  it  goes  into  the  lake,  the  width  of  the 
Fifty  Mile  River  near  its  mouth  is  probably  200  feet  or  250. 
The  width  of  the  channel  in  which  the  boats  run  where  the 
water  is  deep  enough  for  a boat  is  probably  all  the  way  from 
150  to  the  full  width  of  the  channel,  the  full  width  of  the  river. 
At  the  mouth  after  you  get  into  the  river  there  is  not  less  than 
six  feet,  except  in  one  place,  and  after  you  get  out  into  the 


1)4!) 


lak(‘  ilien  it  shoals  out  and  is  tlunx^  shoal  and  in  low  wat(;r  in 
the  lake  there  is  about  two  1‘eet  and  a halt*  ol*  water  there. 
(Ahst.,  }).  15d().)  44ie  lake  was  really  only  a broadening  of  the 
river.  The  lake  is  dO  miles  long  and  al)out  three  or  four  miles 
wide.  It  comes  down  through  and  out  into  the  Fifty  Mile 
Eiver  below.  The  boats  we  built  did  not  go  up  there,  they 
were  built  in  Victoila — Westminster  and  finished  in  Van- 
couver on  the  Stikine  Eiver.  They  were  going  to  take 
freight,  they  were  trying  to  establish  an  all  Canadian  route 
from  Fort  Wrangel  to  Glenora  or  Telegraph  Creek  and  then 
up  by  Teslin  Lake  and  through  the  Hootalinqua  Eiver  and 
in  that  way  get  into  the  Yukon  country  at  Dawson.  They 
were  for  use  in  connection  with  supplying  the  mines.  I came 
to  the  AVhite  Horse  ?tapids  in  October,  1899.  I staid  there  just 
long  enough  to  get  aboard  of  train. 

Q.  What  has  been  your  experience  as  a real  estate  man. 
Captain!  (Abst.,  p.  1536.) 

A.  Well,  I have  made  a whole  lot  of  money  at  it  and  I 
spent  it  as  fast  as  I got  it. 

Q.  When  did  you  first  go  into  the  real  estate  business! 

A.  When  I first  bought — the  first  foot  I ever  owned  in 
my  life  was  when  I went  to  establish  a transfer  of  the  North- 
ern Pacific  across  the  Columbia  Eiver  at  Pasco.  I had  to 
buy  a piece  of  land  to  live  on,  and  after  I got  a little  piece 
I wanted  more,  and  I kept  on  buying  more  and  one  time  I 
owned  several  thousand  acres.  T still  own  a few  pieces. 

There  was  a period  when  I left  the  business  of  steamboat- 
ing and  followed  the  business  of  real  estate.  While  I was 
in  the  emjdoy  of  the  ! Abst.,  ])]).  1536-7)  Northern  Pacific,  I was 
looking  out  for  their  steaml)oat  interests  and  I was  carrying 
on  a real  estate  busiuess  for  myself  and  acting  as  local  agent 
for  the  Northern  Pa(  ifi^*  Land  (k)m])any;  that  was  from  about 
1887  to  1892.  T was  ca})tain  of  a steamboat  at  the  same  time, 
and  doing  real  estate  business  for  myself  and  for  the  com- 
])any  and  was  county  commissioner  and  T don’t  know  what 
all.  I was  actually  operating,  I was  captain  of  a transfer 
'boat  which  was  carrying  cars  across  the  river,  a ferry  boat 
across  the  river.  It  was  not  necessary  foi*  me  to  be  on  the 
boat.  I was  looking  after  the  boat  and  this  (Abst.,  p.  1537) 
was  outside,  incidental,  although  T was  here  in  ’92,  I was  in 
Chicago  and  I was  in  Cincinnati  a couple  of  months.  I came 
here  in  July,  ’92,  and  left  here  on  the  27th  of  December,  ’92, 
and  went  home.  T was  sick  in  ’93,  in  the  hospital  for  three 
months  and  a half.  In  ’94  there  was  an  immense  flood  up  in 
the  Columbia  Eiver  and  T took  charge  of  running  the  steamer 
for  the  Northern  Pacific  Eailroad  Company  from  Ainsworth 
to  Wallula  to  connect  the  two  roads  which  were  washed  out, 
for  about  six  weeks.  And  T was  around  home  there  a good 


(leal  of  the  time.  Then  in  ’95,  I of  (‘ourse  like  everybody  else, 
1 went  broke  in  ’95,  and  in  ’95  I had  to  go  to  work.  1 com- 
nieiK^ed  going  round,  L think  it  was  in  ’95,  it  was  in  ’95  I 
brought  the  steamer  Norma  down  through  the  Snake  River 
(kinon.  That  is  between  Huntington  and  Lewiston.  Hunt- 
• ington  is  at  the  end  of  where  the  Oregon  Short  Line  and  the 
().  R.  (fc  N.  join.  That  is  uj)  above  on  the  (Abst.,  p.  1537)  Snake 
River  to  the  south.  We  went  up  250  miles.  The  canon  is 
between  Huntington  and  J^ewiston.  The  canon  proper  is 
about  four  miles  long. 

Q.  You  say  you  made  that  trip  in  1895? 

A.  Yes,  sir,  I believe  tliat  was  the  year. 

Q.  What  was  the  boat? 

A.  Steamer  Norma.  1 went  over  the  rapids  or  Cascades, 
Copper  Creek  Falls  was  the  worst.  Copper  Creek  Falls  is  a 
perpendicular  fall  of  about  18  feet  and  at  about  200  feet  or 
250  feet  below  the  fall  where  it  pitches  over  there  is  a cliff 
about  150  feet  high  standing  right  at  right  angles  with  the 
current.  The  current  has  gone  through  there  and  the  drift 
(Abst.,  pp.  1537-8)  has  disintegrated  the  rock  until  a part  of 
the  current  runs  under  the  cliff.  As  you  pitch  over  this  cliff  it 
seems  as  though  the  boat  were  going  to  mash  her  brains  out. 
You  get  a lot  of  water  pouring  off,  there  is  a big  river,  and 
you  go  off  there  about  18  feet  fall  there,  of  ccyurse  the  sup- 
porting water  will  hold  it  up  at  an  angle  probably — ten  de- 
grees, probably,  ten  degrees  is  pretty  heavy.  Anyhow  the 
water  runs  very  fast. 

Q.  Do  you  know  where  the  place  is  they  call  the  Seventy 
Mile  Canon,  or  don’t  you  remember  that? 

A.  I don’t  know.  There  was  no  one  aboard  who  had  ever 
seen  the  river  before,  we  did  not  know  where  we  were  going. 
(Abst.,  p.  1538.)  We  found  c|uite  a number,  all  the  way  from 
10  to  15  feet  falls,  all  the  way  down.  Tliere  are  a few  miles 
at  one  place  we  found  where  the  river  had  to  go  through  a 
clay  bank  with  granite  boulders.  They  had  fallen  in  until 
the  granite  boulders  were  lying  just  as  steep  as  they  conk! 
lay  and  the  water  was  going  down  there,  and  I assumed  tliere 
was  about  200  feet  of  fall  in  about  four  miles.  It  looked 
like  going  down  a chalk  line,  it  was  perfectly  white.  I stood 
in  the  ]hiot  house  and  I could  not  see  the  water  on  either 
side.  It  was  perfectly  straight,  I could  see  the  water  ahead 
but  I could  not  see  the  water  on  either  side  of  the  pilot  house. 
I suppose  the  water  there  was  about  70  or  80  feet  wide.  I 
saw  just  the  banks,  (Abst.,  p.  1538)  fallen  in,  the  rocks,  the 
granite  boulders  that  were  lying  there  all  the  way  from  the 
size  of  your  head  to  0 feet  in  diameter.  That  was  located 
below  the  Copper  Ledge  Falls  and  60  miles  above  Salmon 
River.  AYe  kept  on  encountering  rapids.  Finally  we  gotA^ 
the  mouth  of  the  Imhaha,  the  Imhaha  River  where  the  Fu- 


reka  and  Fargo  mines  are  Ux^aied  now.  'TlKna;  we  foiind  very 
diOieult  ra})ids.  It  })onred  tlirongli,  these  granite  boulders 
liad  fallen  in  and  there  was — a reef  eoines  this  way  on  this 
side  (indieating)  and  there  is  a basalt  reef  and  granite 
boulders  on  that  (indieating)  at  right  angles  to  the  hank  of 
the  river.  And  tlien  at  a ])oint  shifting  out  there,  tliey  had 
been  shoved  out  there  by  a waters])out  and  washed  down 
and  forced  it  right  (Abst.,  p]).  1538-9)  in  there  so  that  it  makes 
that  part  circular  rapids.  The  boulders  project  out  into 
the  stream  out  of  the  water,  perhaps  there  is  100 
feet  to  spare,  but  it  is  very  crooked  there  and  quite 
dangerous.  When  you  gel  a little  further  you  come 
to  Sheep  Rock,  there  is  where  the  steamer  Imhaha 
was  wrecked.  The  captain  was  going  through  and  had 
out  a line  there  and  pulled  her  through,  but  they  were  a 
little  careless,  or  his  men  were  careless  in  throwing  the  line 
overboard  and  it  caught  on  the  wheel  and  she  turned  down 
and  ran  on  one  side,  one  end  on  one  side  and  the  other  on  the 
other,  right  across  the  river.  They  jumped  ashore  as  soon 
as  they  could  and  she  just  backed  right  off  and  upset  a little 
way  below.  (Abst.,  p.  1539.)  The  Shee])  Rock  projects  out 
into  the  stream  at  that  point  making  rather  a narrow  stone 
cliff  there.  The  Priest  Rapids  is  stronger  than  that,  it  (Sheep 
Rock  Ra])ids)  is  a little  bit  stronger  than  Palouse.  It  lias 
got  a cliff  there  at  the  side  like  the  Priest  Rapids,  about  four 
or  three  miles  below  it  goes  into  the  Salmon  River.  Where 
the  Salmon  River  comes  in  it  is  more  or  less  broader.  Then 
the  water  throw^s  out  on  the  right  side  and  there 
is  a liar  there  ])robably  bO  or  70  acres.  After  it  ]iasses 
there  its  speed  is  about  7 or  8 miles  an  hour.  (Abst.,  ]i.  1539.) 
I think  it  is  fifty  miles  fi'om  the  mouth  of  the  Salmon  Kiver 
to  Lewiston.  For  the  fifty  miles  down  stream  it  takes  about 
two  hours  or  two  hours  and  ten  minutes  to  run  the  distance. 
To  go  u])  stream  it  takes  about  8 hours.  1 have  gone  up  the 
Salmon  River  to  the  mouth  of  the  Imhaha.  That  is  as  far 
as  they  ever  have  been.  In  ’04  I was  on  a boat  that  was  sent 
u])  there  by  the  ().  T.  N.  (h)m])any  and  tried  to  get  through 
this  Snake  River  canon  and  we  got  u|)  about  25  miles  above 
Salmon  river  and  struck  one  of  the  bars  that  went  across  the 
river  and  knocked  14  feet  of  her  bow  off  and  we  turned 
around  and  came  back.  (Abst.,  ]).  1539.)  1904  I believe  it  was 
when  I quit  the  railroad,  quit  the  company  and  went  onto 
the  Snake  River,  and  was  running  up  until  December,  1900. 

Q.  And  in  ’73  or  ’4  when  everybody  went  broke  all  through 
the  country  you  went  into  the  butcher  business'? 

A.  Oh,  no. 

Q.  Wasn’t  that  the  time? 

A.  ’93  when  they  all  went  broke  I didn’t  go  into  the 
butcher  business  then. 


(j).  When  was  it  you  took  up  the  butcher  business? 

A.  That  was  in  73  and  ’4. 

(^.  That  is  what  ] say,  in  73  and  ’4,  was  when  some  of  us 
think  was  the  worst  panic  we  ever  had. 

A.  We  didn’t  know  anything  about  it  that  far  out  west. 

I vim  up  Clear  Water  in  1863.  It  joins  the  Snake  at  Lew- 
iston, Idaho,  conies  in  from  tlie  (Abst.,  p.  1539-40)  north,  no 
the  east,  comes  in  from  the  east.  I went  up  it  about  twelve 
miles  to  the  Lapway  Agency. 

Q.  Have  you  been  there  since? 

A.  Not  on  the  river. 

Q.  There  is  a railroad  through  there  now  is  there  not? 

A.  Yes,  sir. 

Q.  And  having  a railroad  they  don’t  use  the  river? 

A.  Yes,  sir. 

Q.  That  is  quite  a common  experience  out  there  where 
the  railroad  parallels  the  river,  isn’t  it? 

A.  Yes,  sir.  They  tried,  there  was  a boat  running  on  there 
a few  years  ago,  tried  to  bring  wheat  down  but  they  made  a 
failure  of  it. 

Q.  Your  idea  would  be  then,  Captain,  that  a river  should 
be  navigable  if  it  was  the  only  way  to  go,  but  not  navigable 
if  there  was  a better  and  cheaper  way  for  a railroad  long 
side  of  it? 

A.  It  is  possible  to  take  some  boats  where  it  is  not — ivould 
not  be  practicable.  ^ 

Q.  Meaning  by  that  now  it  would  not  pay? 

A.  Where  it  ivon’t  pay. 

Q.  Yes,  and  you  mean  to  be  understood  in  that  sense  when 
you  speak  of  streams  being  practically  navigable  or  prac- 
tically not  navigable? 

A.  Yes. 

Q.  And  then  its  character  ivould  vary  in  that  respect  with 
the  development  of  the  country?  (Abst.,  p.  1540.) 

A.  Yes,  sir. 

Q.  And  the  other  means  of  transportation,  is  that  right? 

A.  Yes.  There  are  quite  a number  of  swift  water  rapids 
on  the  Columbia  between  Pasco  and  Celilo.  Squally  Hook 
Eapids  is  pretty  swift  and  it  is  difficult.  You  have  to  go 
between  Pasco  and  Celilo.  (Abst.,  pp.  1540-1.)  In  the  whole  dis- 
main  rapid.  The  main  rapids  is  straight  and  they  are  very 
strong  and  swift.  It  is  from  the  head  to  the  foot  probably 
three-quarters  of  a mile.  In  that  distance  the  river  falls,  I 
should  judge  it  was  about  ten  feet,  or  an  eight  foot  fall,  eight 
or  ten. ' I have  run  that  fall  probably  two  or  three  thousand 
times.  I know  the  Umatilla  Eapids,  upper  and  lower.  They 
are  just  about  at  the  town  of  Umatilla,  on  the  Columbia  Eiver, 
between  Pasco  and  Celilo.  (Abst.,  1540-1.)  In  the  whole  dis- 
tance of  two  and  a half  miles  there  is  a fall  there  at  the  upper 


Umatilla  of  17  feet.  We  measured  it  at  tlie  time  I was  mak- 
ing the  soimdiiigs  and  surveys.  I iiave  run  both  a ways.  \ 
iiave  run  up  iu  liigli  water  and  in  low  water  botli  ways.  1 
took  through  there  a hat  bottom  light  draught  stern  wheel 
steamboat.  The  last  boat  I was  running  tliere  drew  29  inches 
light.  The  boats,  the  average  boat  for  the  Columbia  liiver 
draws  about  30  inches  light,  when  loaded  with  a load  she  would 
draw  from  41  to  6 feet,  and  even  brought  down  as  much  as 
7 feet.  I assisted  in  the  survey  for  the  purpose  of  improving 
the  channel  there  at  the  Umatilla  Rapids. 

Q.  Is  that  where  you  said  there  was  a current  of  twelve 
miles  an  hour? 

A.  Yes,  sir.  (Abst.,  p.  1541.)  As  I understand,  they  have 
got  out  there,  they  show  a current  running  at  the  gravel 
bar  which  is  called  the  Lower  Riffle,  at  nine  miles  an  hour. 
The  Yukon  river  from  the  mouth  to  the  ramparts  which  is 
800  miles  up,  is  one  continual  mass  of  sand  and  down  at  the 
lower  end  it  is  pondry ; that  is  a kind  of  a mossy  growth  that 
grows  in  bunches  right  out  into  the  stream.  It  grows  right 
out  in  the  islands,  innumerable  islands  of  ice.  And  the  chan- 
nels are,  if  a man  knows  his  business — they  are  shifting  con- 
siderably. After  you  get  to  the  ramparts,  then  you  have 
about  100  miles  of  rock,  where  its  channel  is  defined  and  re- 
mains there  the  same.  Dawson  is  about  800  miles  down,  it 
is  half  way,  the  ramparts  are.  Then  after  you  get  above  Fort 
Hamlin,  which  is  about  50  or  60  miles  above  Ramparts,  at 
Ramparts  it  commences  to  spread  out  again  and  it  is  full  of 
innumerable  islands,  and  the  channels  are  very  narrow  and 
crooked  and  it  divides  and  going  through  you  would  have  to 
follow  in  one  channel  where  it  runs  off  by  the  island,  and  you 
have  (Abst.,  pp.  1541-21  got  to  run  the  channel  that  you  can 
hnd  there.  It  would  be,  places  in  extreme  high  water  would  be 
from  4 to  5 feet  deep.  In  low  water  the  same,  because  it  goes 
out,  the  high  water  brings  the  gravel  down  and  fills  it  up 
just  as  the  river  bed  rises.  I understand  that  the  river  at  the 
widest  part  of  the  Yukon  flats  is  45  miles  from  water  to  water 
on  one  side,  andjhat  is  not — all  filled  in  between  with  a heavy 
growth  of  cotton  wood  and  even  fir  and  tamarack  growing 
there,  and  all  those  innumerable  channels  go  through  there, 
so  that  is  the  only  place  that  I hired  a pilot  when  I went 
through  because  I did  not  think  it  would  pay  to  waste  time 
hunting  for  the  channel. 

Q.  And  he  got  you  into  trouble  at  one  place? 

A.  Yes.  The  narrowest  channel,  some  places  that  would 
not  be  over  75,  or  100  feet  wide  and  four  to  six  feet  deep. 
When  you  get  up  to  a little  place  called  Fourth  of  July  creek 
you  have  got  a pretty  fair  channel,  it  is  reasonably  perma- 
nent. The  bed  of  it,  the  bed  of  the  channel  is  of  hard  rocks 
and  you  have  no  trouble  at  all  in  (Abst.,  p.  1542)  finding  the 


('liaimol  there;.  It  is  lined  with  glaciers  going  down  on  both 
sides  ol*  tlie  river  and  there  are  moraines  running  in  on  botli 
sides  above  the  river  on  tlie  bank  all  the  way  up,  and  all  the 
way  we  saw  boulders  sticking  up  out  of  tlie  water,  and  had  to 
work  your  way  around  between  them.  From  Dawson  up  to 
White  Horse  it  is  continually  the  same,  although  there  are  a 
few  ])laces  where,  at  steamboat  bar  they  liave  quite  a number 
of  islands  there  tliat  you  have  to  go  through.  These  islands 
are  made  very  largely  of  glacier  clay,  cementing  the  boulders 
in  place.  They  are  made  by  the  ice  and  they  have  crowded 
iq)  there  and  you  can  go  back  and  come  up  there  in  the  sum- 
mer time  where  the  water  has  waslied  (Abst.,  p.  1542)  out  and 
you  can  see  the  ice  with  the  trees  growing  on  top  of  them. 

That  is  what  we  call  historically  fossil  ice? 

A.  Yes,  sir,  ice  that  has  fossilized  that  is  a great  many 
years  old.  That  goes  up  near  Skagway.  No,  White  Horse  is 
the  name  of  a rapids.  It  derives  its  name  from  the  fact  that 
it  comes  galloping  like  a white  horse  there.  There  are  boulders 
and  reefs  in  the  stream.  The  stream  is  lashed  into  ferment 
all  the  way  down.  There  was  a boat  on  Lake  Marsh,  which 
crosses  over  to  Caribou,  where  there  have  been  boats  run- 
ning. 

Q.  The  boats  were  actually  run  on  the  rapids  coming 
down?  (Abst.,  pp.  1542-3.) 

A.  No  steamboats  were  run  or  can  run  up  there  through 
the  White  Horse.  There  have  been  several  taken  down, 
several  steamers,  small  ones.  One  was  the  Nora,  was  about 
80  feet  long  and  10  feet  beam,  and  the  Willie  Irwin,  about  the 
same  thing,  and  there  was  one  other  boat  that  was  about  100 
feet  long,  I forget  her  name.  There  have  been  I think  four 
boats  taken  down  over  the  rapids.  They  drew  about  two  feet. 
The  80  foot  boat  carried  about  400  ton  up  stream,  she  had 
about  A 4 foot  draught.  (Abst.,  p.  1543.)  The  100  foot  boat 
drew  about  the  same  amount.  The  White  Horse  Rapids 
proper  are  about  a mile  long.  I have  never  been  on  the  Felly. 
I have  heard  a boat  went  up  there  60  miles,  but  how  much 
farther  she  could  have  gone  I do  not  know.  I used  this 
process  of  cordelling  in  the  days  of  my  early  batteaux  ex- 
perience. In  a batteau,  we^took  the  line  in  (Abst.,  p.  1543)  a 
batteau  right  up  to  the  bank  and  the  men  jump  out  and  go 
along  that  way  and  line  up  around  those  swift  waters.  And 
in  warping,  why  you  would  take  the  skiff  alongside  and  put 
your  rope  in  it  and  carry  the  rope  up  above,  and  then  run 
the  end  back  to  the  big  boat  and  put  it  on  the  capstan  and 
wind  up  there.  And  sometimes  if  the  bank  is  good  they  just 
jump  out  and  run  alongside  the  bank  with  the  line,  pass  the 
line  up  on  the  bank  and  make  it  fast  and  shove  her  out  and 
wind  her  up.  That  is  the  practice  in  common  use  on  the 
Snake  and  Clearwater  and  everywhere  in  the  swift  water 


streams,  and  it  is  still  in  common  ns(‘  on  tli(‘  Snak(i.  VVticr- 
ever  a steamboat  can  they  put  ont  a line,  and  then  they 
handle  it  with  tlie  (*apstan.  On  the  rapids  above;  L(;wiston 
there  never  has  l)een  a boat  went  np  through  there;  that  was 
inn  without  a line.  (Abst.,  p.  Ibdd.)  Theise  tieiats  run  on 
tlie  Snake  ein  their  eiwn  ])Ower  in  still  water  wlien  carrying 
the  oreiinary  load  of  freight  and  abeiut  12  mile  boats.  Com- 
ing down  the  stream  seimetimes  on  the  Snake  River  we  would 
go  more  than  twice  that  fast.  Weil,  I have  considered  tliat 
sometimes  1 went  35  miles  an  hour,  but  I wouldn’t  swear  to 
it. 

Q.  When  did  you  arrive  in  Chicago  on  this  occasion,  Cap- 
tain? 

A.  Saturday  night  at  10 :05. 

Q.  And  you  went  down  to  the  Des  Plaines  River  yester- 
day? 

A.  Yes,  sir.  (Abst.,  pp.  1543-4.) 

Q.  On  Sunday? 

A.  Yes,  sir. 

Q.  Who  were,  with  you? 

A.  There  was  Mr.  Logan,  Mr.  Munroe  and  Mr.  Norton. 
We  left  Chicago,  Sunday  afternoon  and  went  down  with  this 
party  between  two  and  three  o’clock.  We  got  back  here  about 
half  past  eight,  I think  it  was;  somewhere  close  to  that.  I 
didn’t  look  at  my  watch.  We  came  back  by  rail  from  Joliet 
and  went  by  rail  to  Joliet.  We  used  an  automobile  from  there, 
made  the  trip  from  Joliet  down  to  the  site  of  this  proposed 
dam  and  back  again.  (Abst.,  p.  1544.) 

Q.  You  came  on  here  for  the  purpose  of  giving  testimony 
in  this  case? 

A.  I suppose  so.  I didn’t  know  what  I was  coming  for 
until  I got  here. 

Q.  You  received  a message  requesting  you  to  come  on? 

A.  Yes,  sir. 

Q.  And  you  came  in  pursuance  of  that  message? 

A.  Yes,  sir,  that  came  from  the  counsel  for  the  defense. 

Re-direct  Examination  hy  Mr.  Scott. 

Q.  And  you  have  traveled  all  over  these  rivers  with  Air. 
Starr  and  noted  their  difficulty,  and  having  that  in  mind,  are 
you  still  of  the  opinion  that  the  Des  Plaines  River  is  not  safely 
navigable  for  boats? 

A.  T am,  sir. 

Q.  You  were  asked  whether  you  referred  to  navigability 
as  compared  to  the  use  of  i-ailroads,  when  you  said  the  Des 
Plaines  River  was  not  in  your  opinion  navigable.  Did  you 
mean  that  its  navigation  would  not  be  commercially  practi- 


cable  in  competition  with  railroads,  or  that  it  was  not  a nav- 
igable stream? 

(Objection;  not  proper  on  re-direct;  overruled.) 

(Abst.,  p.  1544.) 

A.  It  is  most  certainly  not  practicable  in  competition  with 
railroads,  and  I don’t  think  it  would-be  practicable  in  compe- 
tition with  wagons. 

Mr.  Scott?  Having  had  your  mind  refreshed  with  all  the 
difficulties  that  you  have  gone  over,  is  it  still  your  opinion 
that  you  could  not  safely  take  boats  up  and  down? 

A.  Yes,  sir,  that  is  my  opinion.  At  Squally  Hook  in  ex- 
treme low  water  in  the  rapids  there  is  a depth  of  eight  and  ten 
feet.  In  the  rapids  proper  there  is  a rock,  right  in  the  head, 
where  the  water  is  eight  or  ten  feet  deep,  but  at  the  lower 
end  where  it  turns  off,  there  is  only  about  four  feet  of  water. 
(Abst.,  pp.  1544-5.)  The  character  of  the  bed  there  is  broken 
rock  and  gravel.  Well,  it  is  boulders. 

Q.  Now,  the  upi3er  Umatilla,  what  is  the  depth  on  the 
rapids  there? 

A.  There  is  no  place  that  you  come  over,  except  over  a 
rock,  except  it  has  been  blown  out  of  the  channel,  where  it  is 
less  than  five  feet  at  low  water,  but  it  is  very  crooked  and  an 
innumeraible  number  of  those  channels  that  are  much  shal- 
lower than  the  one  that  we  followed.  The  one  we  followed  at 
the  extreme  low  water  in  our  navigation  had  about  five  feet 
of  water.  (Abst.,  p.  1545.)  The  Yukon  channel  was  probably 
300  feet  wide  and  about  5 feet  deep,  clear  of  boulders  in  the 
channel. 

The  White  Horse  Eapids  are  between  400  and  500  feet  in 
width.  It  is  not  shallow.  When  I speak  qf  dqpth  I mean 
depth  in  the  clear.  The  channel  in  the  Stikine  at  the  place 
where  the  trees  come  over,  from  bank  to  bank,  is  about  400 
feet,  but  the  channel  probably  where  the  boats  could  run,  is 
not  over  75  feet.  (Abst.,  p.  15*45.)  Its  depth  was  about  3^  feet 
and  its  bed  was  small  gravel.  At  five  mile  rapids  there  was 
a dry  reef.  There  is  no  place  in  the  channel  proper  where 
there  is  less  than  eight  feet  At  Fish  Hook  Eapids  there  was 
2 feet  of  water  on  the  left  and  the  deepest  water  was  on  the 
right,  about  5^  to  6 feet.  The  long  crossing  rapids  was  the 
shoalest  place  in  the  Snake  Eiver  and  the  depth  of  channel 
there  at  lowest  depth  was  thirty  inches.  (Abst.,  p.  1545.) 

Q.  And  three  feet  at  the  channel? 

A.  Two  feet  and  a half  at  dead  low  water. 

Q.  Yes.  Now,  the  Eescue  Island  you  said  was  basalt  reef. 
What  were  the  depths  at  the  Eescue  Island  Eapid? 

A.  The  reefs  at  low  water  protrude  from  the  surface,  but 
by  going  above,  see-sawing  down  and  going  up  and  see-saw- 
ing down  again,  we  got  through  the  channel,  and  there  was 


])robably  six  or  eight  feet  of  water.  False  Faloiise  1 never 
saw  less  tlian  eight  feet  of  water. 

Q.  At  Falouse  Jiapids  itself,  what  is  the  depth  of  the 
water  1 

A.  Unknown. 

Q.  Very  deep? 

A.  Very  deep.  In  very  low  water  at  the  upper  end  of  Pa- 
louse  the  boulders  extend  almost  across,  making  the  channel 
very  swift,  and  they  are  only  about  five  feet  under  water. 

.Q.  Five  feet  under  water! 

A.  Yes. 

Q.  That  is  at  lowest  navigable  water! 

A.  That  is  at  lowest  navigable  stream. 

Q.  What  is  the  depth  at  Monumental  Rapids  under  simi- 
lar conditions! 

A.  About  30  inches,  two  feet  and  a half. 

Q.  That  is  clear  of  boulders! 

A.  Clear  of  gravel. 

Q.  At  the  Texas  Rapids,  what  is  the  depth  at  low  water? 
(Abst.,  pp.  1545-6.) 

A.  Texas  Rapids,  there  is  quite  a depth  there,  near  the 
head.  We  have  to  go  over  rocks  that  are  about  five  feet  under 
water.  (Abst.,  p.  1546.) 

Q.  Now,  Priest  Rapids,  what  is  the  effect  of  high  and  me- 
dium stages  of  water  upon  Priest’s  Rapids! 

A.  It  raises  the  water  over  a dry  channel.  It  fills  a dry 
channel  on  the  Douglass  County  side  and  allows  steamboats 
to  pass  up,  around  a canal,  which  is  very  swift  and  turbu- 
lent. 

Q.  What  depth  of  water  do  you  have  then! 

A.  About  five  feet.  I went  down  it  and  up  it  in  a medium 
stage  of  water.  It  is  navigal)le  ])ut  it  is  only  navigable  at 
medium  and  high  stage.  Medium  and  high  stage.  At  low 
water  it  pours  right  into  a sluice  which  is  probably  a hun- 
dred feet  wide  and  the  whole  of  the  river  goes  right  through 
that  one  sluice,  so  I couldn’t  tell  al)out  the  slope;  it  is  impos- 
sible for  a boat  to  climb.  (Abst.,  p.  1546.)  At  the  Cabinet 
Rapids  there  was  more  than  ten  feet  of  water.  At  Rock  Island 
Rapids  there  is  not  an  extreme  amount  of  current  there,  and 
at  the  narrowest  point  I think  the  water  was  about  8 feet 
when  I went  through.  But  the  water  gets  low,  the  channel 
that  a steaml)oat  has  to  go  through  becomes  almost  dry  and 
the  rocks  stick  out  of  the  water.  The  water  percolates  through 
between  innumerable  channels  that  are  not  wide  enough  for 
a steamboat  to  go  through. 

Q.  How  do  you  get  the  steamboat  through! 

A.  You  don’t  get  through  there  in  low  water. 

I wasn’t  at  the  Chelan  Rapids  at  extreme  low  water;  when 


(m 


1 was  lli(‘r(‘,  there  was  about  S feet  of  water.  (Abst.,  pp.  154G- 
1547.) 

(^).  And  on  that  trip  you  passed  over  the  rapids  near  Mc- 
Lauglilin’s  Falls;  wliat  was  tlie  de})tli  of  the  water  there r 

A.  That  I eouldn’t  say;  we  hgiired  that  tliere  was  about 
three  feet  and  a half  of  water. 

(j).  JIow  much  ? 

A.  About  three  and  a half  feet. 

(^).  .Hills’  Bar,  you  said  the  river  was  GOO  feet  wide,  fifty 
or  sixty  feet  ])etween  rocks,  a cliannel  of  50  or  GO  feet; 
what  was  the  depth  of  the  river  at  Hill’s  Bar! 

A.  1 was  very  young  at  that  time  and  L don’t  remem))er. 

Q.  Have  you  any  distinct  recollection  as  to  the  character 
of  that  bar  at  all? 

A.  L recollect  having  seen  the  rocks  breaking  in  all  direc- 
tions and  that  we  followed  a certain  channel.  How  deep  it 
was,  I don’t  know. 

Q.  You  s])oke  of  going  in  the  Norma.”  Now,  turning 
to  the  Snake  Biver,  what  year  was  it  you  went  down  with  the 
Norma  from  Huntington  to  Lewiston?  (Abst.,  p.  1547.) 

A.  I l)elieve  it  was  in  1885. 

Q.  Prior  to  that  time  the  Government  had  done  work  on 
it,  hadn’t  it,  between  those  points? 

A.  Yes,  sir,  between  Huntington  and  Seven  Devils. 

Q.  Let  me  read  this  to  you:  I am  reading  from  page 
3532  of  Part  5,  Report  of  Engineers  for  1901. 

(Objection;  not  proper  on  re-direct  to  the  use  of  ex- 
traneous documents  as  a method  of  elaborating  the  tes- 
timony of  the  witness;  overruled.) 

Mr.  Scott: — (Reading)  “In  1892,  $20,000  and  in  1894 
$25,000  were,  as  before  referred  to,  appropriated  for  the  im- 
])rovement  of  the  Snake  from  Huntington  bridge  down  to  the 
Seven  Devils  mining  district.  Considerable  work  was  done 
in  freeing  the  river  from  obstructions  in  this  locality;  consid- 
erable x)lant  was  collected,  including  drills,  scows,  tools,  etc., 
and  the  work  of  removing  ledge  rock  and  boulders  was  carried 
on  for  several  reasons.  Only  one  steamer,  the  Norma,  was 
ever  built  for  navigating  this  section  of  the  river,  and  she 
made  but  one  trip  and  then  the  owners  abandoned  the  idea 
of  running.  (Abst.,  ]>]n  1547-8.)  In  189G  all  the  Government 
plant  in  this  portion  of  the  river  was  sold  and  the  river  im- 
provement abandoned.  ’ ’ 

Q.  That  is  the  trip  that  you  made,  is  it  not.  Captain? 

A.  Yes,  sir,  I brought  the  Norma  down. 

Q.  And  that  is  a correct  statement,  that  is  the  only  trip 
you  ever  made? 

A.  No,  she  made  a trip  down  to  Seven  Devils  and  back. 

T went  from  Huntington  to  Seven  Devils  and  back  to  Hunt- 


ingtoii,  and  then  she  laid  ili(‘re  until  the  next  year  araJ  tlani  L 
took  her  down  to  Lewiston. 

xMr.  SVott:  - That  was  the  eoinpleti^  history  of  lun-  exj)eri- 
enee  on  that  [)art  of  the  river  ? 

A.  Yes,  sir.  (Abst.,  ]).  1548.) 

Rc-cross  Exaimnaflon.  by  Mr.  Starr. 

They  are  making  some  i)i'ogress  with  the  development  of 
the  canal  all  the  way  around  The  Dalles,  but  the  canal  is  not 
yet  completed.  It  will  be  a number  of  years  to  come  before 
that  enterprise  can  be  completed.  But  there  is  navigation 
below  it  and  navigation  above  it. 

Q.  You  have  a place  there  in  the  Columbia  River  where 
there  are  boats  below  and  boats  above,  but  the  natural  bar- 
rier at  The  Dalles  is  so  great  that  there  isn’t  any  naviga- 
tion through  The  Dalles  themselves? 

A.  Yes,  sir. 

Q.  Is  there  any  place  like  that,  that  you  think  of  now  on 
the  Snake  where  there  is  navigation  above  it  and  navigation 
below  it,  but  not  through  it!  (Abst.,  p.  1548.) 

A.  No,  sir,  there  is  no  such  place  as  that.  It  is  possible  to 
take  a steamboat  through  the  Snake  River  canon,  but  there 
are  no  boats  above  since  the  Norma  was  brought  down;  [ 
don’t  know  l)ut  what  there  may  l)e  one.  The  Okanogen  Lake 
is  being  navigated  in  British  Columbia.  The  Okanogen  River 
is  being  repaired  l)y  the  (jovernment  so  that  boats  can  be 
taken  up  there  from  the  Columbia  River.  They  expect  to 
run  there  about  three  months  in  the  year.  (Abst.,  ])p.  1548-9.y 

Q.  Reading  from  this  same  re]:>ort  from  which  counsel 
read  to  you,  a statement  on  the  same  page,  ‘‘The  U])])er  Co- 
lumbia and  Snake  Rivers  having  formed  one  of  the  most  im- 
portant highways  of  travel  in  the  region  in  early  days  be- 
fore the  railroads  were  com])leted,  C^ongress  as  early  as  1872 
made  ap])ropi-iations  for  the  ini])rovement  of  the  (k:>lumbia, 
and  in  187(1  the  Snake  was  added  to  the  ])lan  of  improvement.” 
Do  you  acce])t  the  statement  as  correct  that  the  ITi)])er  (ki- 
lumbia  and  Snake  Rivers  formed  one-  of  the  most  im])ortant 
highways  of  ti'avel  in  the  region  in  the  early  days  l)efore 
the  railroads  wei'e  (‘ompleted.  (Al)st.,  p.  1549.) 

The  Witness:  What  is  the  (juestion! 

Mr.  Starr:  I simply  put  the  ouestion  to  you  if  they  did 
constitute  the  main  highways  of  travel  before  the  railways! 

A.  They  most  certainly  did,  yes,  sir. 

^ Q.  Now  that  the  rail  wavs  have  been  developed  on  each 
side  of  it,  the  rivers  do  not  constitute  the  main  highway  of 
travels! 


A.  TJiey  do  not,  but  we  are  making  every  effort  to  make 
tliem  so. 

Q.  Yoxi_are  trying  to  liold  on  to  them  all  that  you  can? 

A.  Yes,  sir,  trying  to  develop  them.  Our  State  appro- 
priated $125,000  for  the  improvement  of  the  Snake  last  year. 
(Ahst.,  ]).  1549.) 

Re-re-direct  Examination  hy  Mr.  Scott. 

Q.  Assuming,  Captain,  the  Columbia  and  Snake  consti- 
tuted the  most  important  highways  of  travel  in  early  days, 
it  was  true,  was  it  not,  in  that  new  country  where  you  were 
brought  up  that  every  stream  that  was  capable  of  navigation 
at  all,  some  way  was  found  to  navigate  it? 

A.  Yes,  sir. 

(^.  Did  you  ever  know  a stream  that  was  capable  of 
being  navigated  that  was  not  navigated? 

A.  I never  did. 

Conclusion  feom  the  Columbia. and  Snake. 

We  beg  to  refer  to  the  condensed  table  of  the  U.  S.  Engineers^ 
data  and  of  Gray’s  testimony  on  these  rivers  given  in  the  brief.  We 
submit  that  they  demonstrate  that  the  ^^difficulties”  in  the  Des 
Plaines  so  exaggerated  and  dwelt  upon  by  the  defense  are  as  noth- 
ing compared  with  those  of  the  Columbia  and  Snake — that  Gray’s 
testimony  shows  that  the  Des  Plaines  could  be  navigated  with  far 
less  trouble;  and  that  Gray’s  test  was  that  of  profit; — that  a river 
was  not  navigable  if  ‘Gt  won’t  pay” — and  that  its  character  varies 
as  the  country  developes  and  other  means  of  transportation  come 
in; — that  a river  is  navigable  until  a railroad  is  built  alongside, 
and  then  it  ceases  to  be  navigable; — and  that  he  used  the  term 
navigable  in  this  sense; — and  we  submit  that  this  is  not  the  legal 
meaning  of  the  term. 


LEGAL  DEFINITION  OF  A NAVIGADT.E  STREAM. 


I. 

What  is  a navigable  stream,  according  to  the  law  of  Illinois? 

The  latest  decisions  atford  the  most  complete  definitions,  viz. : 
Schulte  V.  Warren,  218  111.,  108,  and 
People  V.  Board  of  Supervisors,  122  111.  App.,  40. 

In  Schulte  v.  Warren,  218  111.,  108,  the  rule  is  stated  thus : 

^‘Some  years  ago  a lock  and  dam  was  built  at  LaGrange, 
below  the  lands,  which  raised  the  water  of  the  lake  about 
eighteen  inches,  and  afterwmrds  the  sanitary  district  canal 
was  opened,  raising  the  water  three  or  four  feet  more,  so  that 
the  natural  stage  of  the  water  in  the  river  is  about  five  feet 
higher  than  in  its  natural  condition.  * * * 

‘^Appellant  did  not  lose  his  title  to  the  lands  by  their  sub- 
mergence, and  we  do  not  understand  counsel  for  appellees  to 
claim  that  he  did,  except  as  against  a supposed  public  right  of 
navigation,  hunting  and  fishery.  The  question  whether  the 
public  acquired  any  right  of  navigation,  or  any  other  right,  in 
the  waters  overfiowing  the  lands  of  appellant  is  conceded  to 
depend  upon  the  question  whether  such  waters  are  navigable, 
and  on  that  question  appellant  insists  that  they  are  not  navi- 
gable in  fact,  while  appellees  insist  tliat  they  are  * * * 

In  this  State  the  public  have  an  easement  for  the  purpose  of 
navigation  in  waters  which  are  navigable  in  fact,  regardless 
of  the  ownership  of  the  soil,  and  the  question  whether  these 
waters  are  navigable  depends  upon  the  question  whether  theif 
are  of  sufficient  depth  to  afford,  a channel  for  useful  commerce. 
* * * The  rule  stated  by  Lord  Hale  in  his  treatise  de  jure 

maris,  that  a stream  to  be  navigable  must  furnish  ‘a  common 
passage  for  the  king’s  people,’  must  be  ^of  common  or  pub- 
lic use  for  the  carriage  of  boats  and  lighters,’  must  be  capa- 
ble of  bearing  up  and  floating  vessels  for  the  transportation  of 
property  conducted  by  the  agency  of  man,  was  approved. 
{Joliet  and  Chicago  Railroad  Co.  v.  llealy,  94  111.,  41G.) 

^ W stream  is  navigalhe  in  fact  only  where  it  affords  a chan- 
nel for  useful  commerce  and  of  practical  utility  to  the  jmblic 
as  such.  * * * It  is  not  necessary  that  the  waters  should 

be  navigable  in  all  their  parts  in  order  that  the  public  may  have 


a of  navigation  wliei-e  tlie  waters  are  dee])  enou^li  and 

Ht  tor  sueli  use.  The  evidenee  sufheiently  sliows  that  there  are 
(‘onsideraTle  spaces  on  these  lands  ])erinanently  snhinerged  to 
siK'li  a deptli  tliat  there  is  a I'ight  of  navigation  in  tlie  public.” 
PI).  118,  119  and  120. 

In  Peojde  v.  Ihxird  of  Supervisors,  122  111.  App.,  40,  the  rule  is 
stated  thus: 

‘‘The  navigable  waters  of  the  United  States  are  those  wliicli, 
whether  fresh  or  salt,  form  in  their  ordinary  conditions,  by 
themselves,  or  l)y  uniting  with  otlier  waters,  a continued  higli- 
way  over  which  commerce  is,  or  may  be  carried  on,  witli  other 
States  or  foreign  countries  in  the  customary  modes  in  whicli 
■such  commerce  is  conducted  by  water.”  p.  43. 

The  early  case  of  the  People  v.  The  City  of  St.  Louis  (5  Gilman, 
351)  was  a bill  by  the  sovereign  State  to  protect  its  navigable  high 
way  in  the  narrow  leftdiand  channel  of  the  Mississippi  at  Bloody 
Island,  St.  Clair  Co.,  from  obstruction  by  a crib  and  dam.  The 
(*onrt  said : 

“The  principal  channel  of  the  river,  with  about  five-eighths 
of  the  water,  passes  west  of  Bloody  Island;  and  this  channel 
is  used  for  all  ordinary  purposes  of  navigation,  passing  up  and 
down  the  river;  while  the  eastern  channel  can  only  be  navi- 
gated with  a small  class  of  steamboats,  and  with  flat  boats, 
keel  boats  and  barges;  although  in  a very  high  stage  of  water, 
it  is  safe  for  the  very  largest  class  of  boats ; and  in  a very  low 
stage,  it  is  hardly  navigable  at  all,  but  is  used  for  mooring 
l)oats.  Although  the  Mississippi  Kiver  is  not  what  is  termed 
by  the  Common  Law  a navigable  stream,  yet  it  is  so,  in  fact, 
and  has  been  declared  to  be  so,  and  recognized  as  such  by  nu- 
merous treaties  and  many  public  laws.  * * 

“The  facts  agreed  upon  show,  that  for  all  crafts  which 
usually  navigate  this  river,  except  steamboats,  and  even  for  a 
small  class  of  these,  this  channel  is  navigable  at  an  ordinary 
stage  of  water.  Not  many  years  since,  all  the  commerce  of 
that  river  was  carried  on  in  boats  which  might  navigate  this 
channel  as  well  as  the  other,  and  such  is  the  case  now  to  a very 
considerable  extent.  This  channel  affords  much  better  navi- 
gation than  the  best  water  in  many  places  in  the  Illinois  and 
Ohio  Rivers,  and  probably  many  other  of  the  tributaries  of  the 
Mississippi,  which  are  confessedly  yniblic  highways.  It  would 
be  absurd  to  hold  that  no  part  of  the  river  is  navigable  except 
where  the  largest  class  of  boats  can  pass.  A stream  may  be 
navigable  for  one  class  of  boats,  and  not  for  another.  Should 
we  hold  that  this  part  of  the  river  is  not  navigable,  because  all 
classes  of  boats  cannot  pass  there,  then  by  the  same  rule  should 
we  have  to  determine  that  those  parts  of  the  river,  where  the 


wator  is  so  sii’oiii*’  lliai  ilioy  (aui  only  l)(‘  navi^'al(‘(l  l)y  'sl<*ani- 
boats,  are  not  navigable.  One  is  (inl/if  (‘(ipahle  of  heifi//  mivi- 
(](ited  1)1/  oKe  (‘loss  of  hoots,  ond  the  other  f)f/  (mother.  Tin* 
only  Feasible  and  praetieable  rule  is,  to  bold  all  parts  of  the 
river  navigable  wbi('b  may  be  navigated  t)j/  any  class  of  vessels 
hohituolly  in  use  on  the  river. 

“We  eaimot  entertain  a donl)t  that  the  eastern  ebannel  of  tlie 
Mississi])pi  River  between  Bloody  Island  and  the  main  land, 
is,  in  fact,  and  within  the  meaning  of  the  law,  navigable,  and  a 
part  of  the  common  highway.  * * j)p.  368,  372,  373. 

A. 

But  the  law  of  Illinois  itself,  on  this  subject,  has  undergone  con- 
siderable change.  At  an  early  date  the  tide  water  test  was  adopted. 

TIDE  WATEE  TEST. 

The  tide  water  test  was  expressly  loid  doicn  in  (^fississipiii 
1842  River)  (Tresp.  Qu.  clause:  Cutting  trees  from  an  island), 
Middleton  v.  Pritchard,  3 Scam.,  510. 

1868  (Ohio  River)  (Quo  warranto  on  right  of  private  wharf  to 
take  toll),  Ensminqer  v.  People  ex  rel  City  of  Cairo,  47  111., 
384. 

1872  (Rock  River)  (Replevin  for  stone  taken  from  bed  of  river; 
right  of  property  sustained),  Braxon  v.  Bressler,  64  111.,  488, 
489.  (Tide  water  test  ex])ressly  reaffirmed  and  court  refuse 
to  overrule  Middleton  v.  Pritchard.) 

1876  (Mississip])i  River)  (Ejectment  for  und.  half  of  Island; 

title  of  plff.  sustained),  Houck  v.  Yates,  81  111.,  179. 

1887  (Meridosia  Lake,  Morgan  Co.,  adjoining  Illinois  River, 
ejectment:  Halfway  Case)  (Title  held  to  stop  at  shores  as  in 
lakes — tide  water  test  re])eated  and  navigability  in  fact 
stated). 

Trustees  of  Schools  v.  Schroll,  120  111.,  509. 

1887  (Mississi])pi  River)  (Injunction  to  restrain  collection  of 
taxes  on  bridge.  Bill  dismissed.*  Right  of  City  to  tax  upheld). 
St.  Louis  B rid  ye  Co.  v.  East  St.  Louis,  121  111.,  238,  is  a mid- 
ivay  case,  stating  that  Mississi])pi  is  navigable  in  fact  but  not 
at  Common  Law,  and  following  the  Common  Imw  cases  in 
language. 


B. 

The  tide  water  test  was  tacitly  disreya rded , but  no  new  test  for- 
mally suhstituted  in 

1865  (Illinois  River)  (Action  by  navigator  foi*  injury  by  bridge 
as  an  obstruction:  right  to  reasonable  bridging  use  u])hel(l). 
Illinois  River  Packad  Co.  v.  Peoria  B rid  ye  Ass’n,  38  III., 
467. 


(;(;4 


18f)8  (Clii(*a^o  Uiver)  (Bill  to  restrain  repair  of  wliarf  as  a nui- 
saruie.  Bill  disniissed.  Ki^lit  to  wliarf  uplield). 

City  of  Chicayo  v.  Lafiin,  4-1)  TIL,  177. 

1869.  (Cdiicago  Kiver)  (Action  for  violation  of  City  Ordinance 
injuring  a bridge:  right  to  bridge  the  stream  upheld). 

City  of  Chicago  v.  McGinn,  51  111.,  66-72. 

1869  (Chicago  River)  (Damages  by  riparian  owner  from  con- 
struction of  R.  R.  bridge:  right  of  action  sustained). 

Chicago  S Pacific  N.  Co.  v.  Stein,  75  111.,  41-45. 

1881  (Calumet  River)  held  navigable:  (Tresp.  Qu.  claus.  by  ri- 
parian owner  for  taking  ice  from  the  river.  Property  right  of 
riparian  owner  upheld.) 

W ashington  Ice  Co.  v.  Shortall,  101  111.,  46,  52. 

1893  (Chicago  River)  held  navigable:  (Petition  by  City  to  con- 
demn land  to  widen  South  Branch.  Approval  of  Sec’y  of 
War  held  prerequisite). 

City  of  Chicago  v.  Laiv,  144  111.,  569,  576. 

C. 

The  neiv  test  of  navigability  in  fact  is  expressly  laid  down  in 

3848  People  v.  St.  Louis,  10  111.,  5 Gilm.),  351,  368  and  373. 

1879  (Healy  Slough  case:  held  not  a stream  at  all.) 

Joliet  S Chi.  R.  Co.  v.  Healy,  94  111.,  416,  419.  Affirmed 
116  U.  S.,  191. 

1891  (Ogden  Slip:  Artificial  waterway,  held  navigable.)  Peti- 
tion to  condemn  in  order  to  widen  Arden  Ave. : held  the  slip 
could  not  be  filled  up. 

Ligare  v.  Chi.,  M.  S N.  R.  Co.,^  139  111.,  46,  66. 

On  second  trial  and  fuller  evidence,  Ogden  slip  held  not 
navigable.  It  teas  not  a stream  and  had  no  current.  166  111., 
249. 

1905  (Rock  River)  (Petition  for  mandamus  to  compel  County 
Board  to  pay  half  cost  of  bridge.)  Petition  dismissed  below 
for  lack  of  averment  that  Sec’y  of  War  had  approved;  held 
■ erroneous.  Petition  held  sufficient  failure  to  obtain  permit  if 
necessary  held  a default  by  the  County  by  which  it  could  not 
profit.  Question  of  navigability  held  not  necessarily  involved, 
and  if  raised  by  answer  should  be  tried  by  jury. 

People  V.  Board  of  Supervisors,  122  111.  App.,  40. 

1905  (Clear  Lake  and  Mud  Lake — arms  of  Illinois  River.  Bill 
for  injunction  against  hunting  over  lands  under.  These  are 
held  rendered  navigable  by  addition  of  water  by  LaGrange 
dam  in  Illinois  River,  and  by  Sanitary  District  of  Chicago.) 
Injunction  against  hunting  sustained.  Tide  water  test  ex- 
pressly rejected. 

Schulte  V.  Warren,  218  II!.,  108. 


Most  ot*  these  ('as(‘s,  and  otlaa-  ('as(‘s  whieli,  willioiil  dcdiniliori,  ap- 
ply these  rules,  deal  with  (pieslions  ol*  laud  title  iu  th(‘  h(;d  of  the 
strcuiu,  or  other  (piestious,  to  wliicdi  the  (juestiou  of  navigability  is 
iiieideiital.  In  the  land  title  eases,  this  court  arrived  at  the  same 
result,  whether  the  stream  be  navigable  or  not. 

Tlie  number  of  Illinois  eases  in  which  the  question  of  navigability 
is  the  primary  and  controlling  question  is  small. 

D. 

The  actual  Illinois  adjudications  of  ivliat  constitutes  a navigable 
stream,  as  the  primary  and  controlling  question,  are  therefore  few, 
and  the  most  directly  in  point  is  that  of  People  v.  St.  Louis  in  5 Gil- 
man. The  court  then  consisted  of  Caton,  C.  J.,  and  Justices  Tkeat 
and  Trumbull. 

We  do  not  overlook  the  dictum  in  Ilibbbard  v.  Bell,  54  111.,  110. 
(1870.)  {Big  Creek  in  Pulaski  County.)  This  was  a bill  in  chan- 
cery to  restrain  defendant  from  felling  trees  into  Big  Creek. 

‘^The  case,  as  presented  by  the  pleadings,  is  a novel  one,  and 
the  claim  of  the  defendant  in  error,  which  was  sanctioned  by 
the  circuit  court,  is  of  a character  so  extraordinary  as  to  chal- 
lenge the  most  careful  investigation. 

‘‘The  facts  are  briefly  these:  The  complainant  in  the  bill, 
the  defendant  in  error  here,  is  the  owner  of  certain  lots  or 
blocks  of  ground  in  the  Town  of  Ullin,  in  Pulaski  County,  which 
front  on  the  Biver  Cache,  and  on  which  are  erected  saw  mills, 
planing  mills  and  lumber  yard,  of  which  he  is  the  owner. 
These  structures  are  four  miles  below  the  mouth  of  a small 
stream  called  Big  Creek.  On  this  creek,  commencing  two 
miles  above  its  junction  with  the  Cache  Biver,  and  in  Union 
County,  the  defendant,  in  the  bill  of  complaint,  plaintiff  iu 
error  here,  is  the  owner  in  fee  simple  of  all  the  land  on  both 
sides  of  this  stream  for  two  miles  up  and  down  the  creek,  in- 
cluding the  bed  of  the  creek,  on  which  he  has  a saw  mill  pro- 
pelled by  steam,  and  for  his  convenience  has  erected  bridges 
across  the  creek  at  two  different  points,  on  his  own  land,  and 
supplies  the  mill  with  logs  by  hauling  and  by  a tramway  lead- 
ing from  the  mill  to  the  place  of  deposit  of  the  logs. 

“The  complainant  obtains  his  supply  of  logs  by  floating 
them  down  Cache  Biver,  and  some  from  Big  Creek,  but  from 
no  point  above  the  defendant’s  lands  and  mill.  He,  however, 
alleges  that  he  has  made  a contract  with  one  Phelps  to  cut  saw 
logs  for  him  on  Big  Creek,  above  the  lands  of  the  defendant, 
which  are  to  be  floated  down  to  complainant’s  mill,  when  the 


water  in  tiie  creek  is  suitable  for  sii(*li  i)ui'])ose,  it  being  alleged 
in  the  bill  that  it  is  only  at  certain  seasons  adapted  to  the 
floating  and  rafting  of  logs. 

“The  charge  is,  that  defendant  felled  trees,  on  his  own  land, 
into  I>ig  Creek,  near  his  mill,  and  tliat  they  were  so  felled  to 
))revent  the  complainant  from  floating  and  rafting  his  logs, 
timber  and  trees  down  that  stream,  and  threatens  to  fell  otlier 
ti*ees  into  the  creek,  and  the  prayer  is  that  the  defendant  be 
enjoined  from  so  doing. 

“The  defendant,  in  his  answer,  admits  the  principal  and  im  * 
t)ortant  allegations  of  the  bill,  and  takes  the  position  that  as 
lie  is  the  owner  of  the  lands  for  two  miles  on  each  side  of  the 
creek,  together  with  the  bed  of  the  creek  and  its  banks,  he  has 
the  right  to  all  the  timlier  growing  and  standing  on  eacli  side 
of  the  creek  and  on  its  banks,  and  to  fell  and  prostrate  it  over 
and  across  the  creek,  at  any  point  over  and  along  the  creek 
and  within  the  boundaries  of  his  lands.  He  furtlier  admits 
that,  in  felling  the  trees  growing  on  the  banks  of  the  creek, 
the  tops  and  branches,  and  which  he  could  not  prevent,  fell 
into  the  stream  by  the  force  of  gravitation.  He  also  admits 
that  he  does  not  wish  the  complainant  to  raft  or  float  logs  over 
his  land,  and  he  further  avers  that  there  is  much  valuable  tim- 
ber on  his  land,  which  overhangs  the  creek,  which  he  intends 
to  cut  and  fell,  and  the  tops  of  which,  when  felled,  will  neces- 
sarily fall  into  the  creek,  where  it  will  be  greatly  to  his  advan- 
tage they  should  remain  until  he  is  ready  to  vrork  them  into 
lumber.  And,  in  conclusion,  the  defendant  protests  against 
the  right  claimed  by  complainant  to  the  use  of  defendant’s 
land  and  water  as  a highway,  or  as  a channel  through  and 
l)y  which  to  float  or  raft  logs  to  complainant’s  mill;  that  he 
has  at  no  time  given  complainant  permission  so  to  use  his  land 
and  water,  and  has  informed  complainant  he  would  prevent 
it,  if  he  could ; and  he  further  says,  in  his  answmr,  that  by 
using  the  stream  of  the  creek  when  suitable  for  floating,  com- 
plainant will  destroy  the  bridges  erected  across  the  creek,  and 
he  avers  that  Big  Creek  is  not  a navigable  stream,  and  denies 
that  complainant  has  any  right  of  way  over  the  same,  through 
and  over  the  lands  of  the  defendant. 

“On  this  answer,  sworn  to,  the  oath  not  having  been  waived, 
the  defendant  moved  to  dissolve  the  in j unction , which  ^notion 
icas  overruled,  and  the  cause  set  for  hearing  on  the  hill  and 
answer,  no  replication  havinig  been  filed,  by  the  complainant, 
and  on  such  hearing  without  any  proofs,  the  injunction  was 
made  perpetual. 

“To  reverse  this  decree,  the  record  is  brought  here  by  writ 
of  error. 

‘‘The  pleadings  establish  the  fact  that  Big  Creek  is  not  a 
navigable  stream,  and  by  the  common  law  it  l)elongs,  its  banks 
and  bed,  to  the  riparian  proprietors,  of  whom  the  ])laintiff  in 


G(i7 

cM'i'or  is  ()iu‘  to  tlio  ('xi(‘ni  of  two  milos  up  and  down  lli(‘  slr(;ani. 

“ddio  proviso  (‘liarac'ter  ol*  this  stroani  is  not  siatcMl,  noi'  do(^s 
it  appear  aiivwhcn’o  in  tlie  record.  Its  hni^tli,  })readtli,  or  di- 
mensions ot  its  bed  above  its  continence  with  the  Riv(‘r  Ca(*lie, 
are  nndisclosed,  noi*  have  we  any  means  of  ascertaining  tln^ 
ordinary  volume  of  water  contained  in  the  bed,  or  its  (juantity 
during  freshets.  We  are  led  to  infer,  from  what  is  stated,  that 
it  is  an  inconsiderable  stream,  nearly  or  wholly  dry  in  the 
summer  season,  and  carrying  a volume  of  water  sufficiently 
])owei’ful  to  float  logs  or  rafts  only  in  seasons  of  freshets,  and 
then  for  a few  days  or  weeks  only.  The  beds  of  all  sucli 
streams  we  know,  judicially,  have  been  surveyed  Iw  the  gov- 
ernment of  the  United  States,  and  sold,  and  on  which  tlie  ])ur- 
chasers  or  their  assigns  pay  an  annual  tax  to  the  State,  besides 
local  assessments  made  upon  them.  They  are,  to  all  intents 
and  purposes,  private  property.  Being  so,  the  question  is  pre- 
sented by  the  plaintiff  in  error,  and  it  arises  on  the  record — - 
indeed,  it  is  the  only  question  of  any  magnitude  in  the  ease,  is 
this  private  right  subservient  to  the  public  use! 

‘U4s  preliminary,  it  may  be  stated  that  it  does  not  a])pear, 
by  this  record,  that  Big  Creek  was  ever  used,  at  any  season, 
alwve  the  lands  of  the  ])laintiff  in  error,  for  the  purpose  of 
floating  rafts  or  logs.  The  allegation  is,  that  Phelps  was  em- 
ployed to  cut  logs,  and  had  a portion  of  them  in  the  creek, 
ready  for  floating.  The  natural  ca])acity  of  the  stream  foi- 
floating,  above  the  lands  of  ])laintiff  in  error,  does  not  a])])ear 
to  have  been  ascertained,  and  there  is  no  evidence  it  has  ever 
been  used  for  that  ])urpose.” 

(54  111.,  pp.  112-115.) 

We  submit  that  this  case,  as  a whole,  “is  of  a character  so  ex- 
traordinary as  to  challenge  the  most  careful  investigation.” 

It  arose  upon  the  record,  which  consisted  of  a hill  for  an  injum*- 
tion  and  a sworn  answer. 

There  was  no  replication,  and  there  were  no  proofs. 

Upon  this  record  there  was  but  one  thing  for  the  court  to  do,  and 
that  was  to  dismiss  the  hill. 

It  had  been  so  held  fre(piently  l)y  this  court. 

“By  not  filing  replication  within  the  time  allowed  for  so  doing, 
the  plaintiff  subjects  himself  to  ai)plication  for  dismissal  of  this 
bill  for  want  of  ])rosecution.” 

(Daniel,  Ch.  Pr.,  5th  Ed.,  ^834.) 


“When  a cause  stands  n))()n  a hill  and  answer  only,  the  eoin- 
plainant  admits  all  that  is  stated  in  the  answer  to  ])e  true, 
whether  it  is  responsive  to  tlie  bill  or  not.’’ 

Pankey  v.  liaiim,  51  111. ,88,  91,  citing 

DeWolf  V.  Long,  2 Gilm.,  679; 

Mason  v.  McGirr,  28  111.,  322. 

Mr.  Justice  Breese  therefore  correctly  said:  ^‘The  pleadings 
esta})lish  the  fact  that  Big  Creek  is  not  a navigable  stream.”  If 
Mr.  Justice  Breese  had  then  said:  '‘The  bill  is  therefore  dis- 
missed,” he  would  have  disposed  of  everything  before  the  Court. 

W^e  respectfully  submit  that  a cause  coming  before  the  Court 
upon  a bill  which  did  not  waive  the  oath  and  upon  the  sworn  answer 
denying  the  allegations  of  navigability,  "and  tvithont  any  proofsd^ 
does  not  present  a record  adequate  for  the  settlement  of  a great 
question  of  law  and  policy  of  the  State  for  all  time. 

The  case  apparently  has  never  been  followed  or  cited,  except  to 
be  referred  to  historically  in  the  opinion  in  Sclmlte  v.  Warren, 
supra. 

The  question  of  public  policy,  upon  which  Mr.  Justice  Breese 
saw  fit  to  give  elaborate  dicta,  was  this : 

Are  streams  in  Illinois,  which  are  not  navigable,  but  which  are 
floatable.  the  freshets  of  spring,  "subservient  to  the  public 

use,”  "to  float  logs  or  rafts  only  in  seasons  of  freshets  and  then  for 
a few  days  or  weeks  only”? 

Of  this  question  Mr.  Justice  Breese  favored  the  negative.  He 
had  some  of  the  very  early  New  York  cases,  which  he  distinguished 
as  being  streams  actually  navigable.  He  disagreed  with  the  Courts 
of  Maine  and  Michigan,  cases  from  which  were  brought  before  him. 
He  at  that  time  did  not  have  before  him  cases  from  Massachusetts, 
New  Hampshire,  Connecticut,  "Wisconsin,  Minnesota,  Arkansas, 
Alabama,  Florida,  Oregon,  Washington,  North  Carolina,  South 
Carolina,  Mississippi,  Tennessee,  Pennsylvania,  and  other  states, 
and  Canada.  Apparently  he  did  not  have  before  him  the  early 
English  cases  here  cited,  viz : 

"In  Grant  v.  Gordon  (Mor.  Die.,  12,  822,  cited  in  L.  E.  2 
App.  Cas.,  872)  it  was  held,  in  reference  to  the  River  Spey, 
which  is  a nontidal  river,  but  had  been  used  for  floating  logs 


6G9 


down  IVom  ilio  hi^lilaiuls  to  llio  son,  iliat  ‘a  i*iv(‘r  hy  wliioli  lli(i 
proctiiots  of  tlio  (‘ountiy  can  he  transported  to  the  sea  {i.  e., 
"floatat)te  doini  stream,  only)  is  a ])n))rK'  benofit  inti*iist(Hl  to 
‘tlio  King-  as  pater  patrhae  for  tlie  belioof  of  his  sul)joots  in 
‘g'OTioral,  wliicli  can  ncitlier  be  given  away  nor  abridged  by  him, 
‘and  that  this  transportation  is  the  chief  and  primary  use  of 
'the  river,  and  if  incompatible  with  fisheries  along  its  coast 
' H'ill  prevail  over  themd  Nothing  can  be  found  in  the  Anieri- 
can  law  which  extends  the  doctrine  of  navigability  any  further 
than  that  case,  and  although  it  was  a Scotch  case  it  was  cited 
by  the  English  court,  and  there  is  nothing  to  show  that  the 
same  rule  is  not  applicable  in  England.  In  Blount  v.  Layard 
(1891,  2.  Ch.,  681,  note)  Bowen,  J.,  in  speaking  of  the  river 
Thames,  says:  ‘We  are  dealing  with  the  Thames,  which  is 
not  a tidal  river  at  the  place  in  question.  But  on  the  other 
hand,  it  is  a navigable  river, — that  is,  all  the  Queen’s  subjects 
have  the  right  of  passing  and  repassing  on  it  and  it  is  what  is 
called  in  the  old  books  a “King’s  stream,”  by  which  is  meant 
not  that  the  soil  must  belong  to  the  King,  but  that  it  is  a high- 
way, and  that  the  King  is  the  natural  guardian  and  conservator 
of  the  commodious  and  convenient  passage  of  the  river  by  his 
subjects.’  ” 

(1  Earnham  on  Waters,  p.  115.) 

Apparently  he  did  not  have  the  full  text  of  Lord  Hale’s  “He  Jure 
Maris”  before  him,  or  he  would  have  seen  the  following  passage  : 

“Sir  Matthew  Hale  (De  Jure  Maris,  chaps.  1,  2,  Hargrave’s 
Law  Tracts;  Hall,  Seashore,  Appx.)  in  his  treatise,  De  Jui*e 
Maris,  the  time  of  the  composition  of  which  is  not  definitely 
kiiovm,  but  which  was  undoubtedly  composed  soon  after  the 
decision  in  the  Banne  Case,  states  the  law  as  follows:  ‘Fresh 
rivers,  in  point  of  propriety,  are  prinia  facie  of  a i)rivate  inter- 
est; yet  they  may  ])e  under  these  two  servitudes — one  of  pre- 
rogative, belonging  to  the  King,  and  another  of  ]mblic  interest 
or  belonging  to  the  public  in  general.  . . The  King  by 

ancient  right  of  prerogative  hath  had  a certain  interest  in'  fresh 
rivers;  (1)  a right  of  franchise  or  ])rivilege  that  no  man  shall 
set  up  a common  ferry  for  all  passengers;  (2)  an  interest  of 
})leasure  or  recreation,  as,  the  right  of  fowling  or  fishing  in  it; 
(3)  an  interest  of  jurisdiction,  which  extends  to  reformation 
and  punishment  of  nuisances  in  all  rivers  that  are  of  common 
passage,  not  only  for  ships  and  greater  vessels,  but  also  for 
smaller,  as  barges  and  boats,  for  as  the  common  highways  on 
the  land  are  for  the  common  passage,  so  this  kind  of  rivers, 
whether  fresh  or  salt,  that  bear  boats  or  barges,  are  highways 
by  water;  and  as  the  highways  by  land  are  (‘ailed  altae  viae 
regiae  so  these  public  rivers  for  public  passage  are  called 
ftnvii  regales  and  haul  streames  le  roy,  not  in  refereiu'e  to  the 


})r()})i-iety  of  the*  river,  but  to  the  })ublie  use.  And  therefore 
the  i-eport  of  Sir  John  Davies  in  tlie  Itoyal  Fisheries  of  the 
lUu/ne  mistakes  the  reason  of  those  hooks  that  call  these 
streomes  le  roy,  as  if  they  were  so  called  in  respect  of  pro- 
pi'iety,  for  tliey  are  called  so  because  they  are  of  public  use  and 
under  the  King’s  special  care  and  protection,  wliether  the  soil 
he  liis  or  not.’  Again  lie  says  (hi.,  chap.  3),  ‘there  he  some 
sti*eams  or  rivers  that  are  private,  not  only  in  propriety  or 
ownership,  hut  also  in  use,  as  little  streams  and  rivers  that  are 
not  a common  ])assage  for  the  King’s  })eo})le.’  Again,  ‘there 
l)e  other  rivers,  as  well  fresh  as  salt,  tliat  are  of  common  or 
])uhlic  use  for  carriage  of  boats  and  lighters.  And  these, 
whether  they  are  fresh  or  salt,  whether  they  flow  and  reflow  or 
not,  are  i)rima  facie  publici  juris  common  highwa^\s  for  man 
or  goods,  or  both,  from  one  inland  town  to  another.  Thus,  the 
rivers  of  Wey,  of  Severn,  of  Thames,  and  divers  others,  as  well 
above  the  bridges  and  ports  as  below,  as  well  above  the  flowing 
of  the  sea  as  below,  and  as  well  where  they  are  become  to  be  of 
private  propriety  as  in  what  parts  they  are  of  the  King’s  pro- 
priety, are  public  rivers  juris  publici.^  ” 

(1  Farnham  on  Waters,  p.  113.) 

Nor  was  Williams  v.  Wilcox,  8 Aid.  & Ellis,  314  (1838 — ^^Severn 
liiver)  brought  to  his  attention.  That  was  an  action  of  trespass 
for  throwing  down  a weir  of  plaintiff  appurtenant  to  his  fishery. 
Plea,  that  said  weir  was  wrongfully  erected  and  placed  and  set  up, 
in  and  across  part  of  a public  navigable  river  called  the  Severn. 
Judgment  for  plaintiff  on  the  ground  the  construction  of  such  weir 
was  legalized  by  statute.  By  the  court : 

“It  is  clear  that  the  channels  of  public  navigable  rivers  were 
always  highways;  up  to  the  point  reached  by  the  flow  of  the 
tide  the  soil  was  presumably  in  the  Crown;  and  above  that 
point,  whether  the  soil  at  common  law  was  in  the  Crown  or  the 
owners  of  the  adjacent  lands  (a  point  perhaps  not  free  from 
doubt),  there  was  at  least  a jurisdiction  in  the  Crown,  accord- 
ing to  Sir  Matthew  Hale,  ‘to  reform  and  punish  nuisances  in 
all  rivers,  ivhether  fresh  or  salt,  that  are  a common  passage, 
not  only  for  ships  and  greater  vessels,  hut  also  for  smaller,  as 
barges  or  boats.’  ” 

In  general  it  may  be  said  that  Mr.  Justice  Bre-ese  followed  the 
lead  of  Chancellor  Kent,  in  one  of  the  few  instances  when  Chan- 
cellor Kent  erred,  namely  in  holding  that  a navigable  stream  must 
be  a tide-water  stream. 

In  so  doing  he  considerably  embarrassed  the  subject  in  the  law  of 


071 


Illinois;  and  in  1(S70,  at  llie  linio  vvluni  lio  dcnadod  llublxird  v.  fUdl, 
tlioro  had  Ihhmi  no  (‘lear  ovorrnling’  of  tlio  oases  liolding  the  tide- 
Avatei*  test.  He  held  to  the  test  irnnselP.  TTis  dicta,  tliei-(‘on  liad  n:ot 
been  overrnled,  and  lie  was  still  under  their  inflneru'e  when  he  de- 
cided Jfuhhard  V.  B(dL 

But  the  later  eases,  heretofore  cited,  make  the  law  clear,  that  ‘Hhe 
(|nestion  whether  these  waters  are  navigable  depends  npon  the  (|nes- 
tion  whether  they  are  of  sufficient  depth  to  afford  a channel  for 
useful  cominerce.” 

Slopes,  sinuosities,  and  current,  are  not,  according  to  this  test, 
controlling  factors.  Is  there  a sufflcient  depth  of  ivater  to  afford  a 
channel  for  useful  commerce?  If  so,  the  stream  is  navigable.  Cur- 
rents may  be  modified,  slopes  may  be  corrected,  loose  boulders  and 
obstructions  may  be  removed. 

The  authorities  make  it  clear : 

1.  That  the  existence  of  obstructions  and  interrnptions  is  not 
controlling. 

2.  That  streams  need  not  be  navigable  in  entirety. 

8.  That  it  is  not  necessary  that  the  stream  should  be  navigable 
all  the  year  round. 

4.  That  it  is  not  necessary  that  the  stream  he  navigable  both 
ways.  Navigability  down  stream  is  sufficient. 

5.  That  it  is  not  necessary  that  there  he  an  existing,  continnons, 
present  nse  of  the  stream.  Its  capability  of  being  ])iit  to  nse  is 
sufficient. 

2.  LEGAL  DEFINITIONS  AND  PRINCIPLES,  GENERALLY,  AS  TO  NAVIGA- 
BILITY. 

^‘In  the  irnited  States  the  term  Hiavigalile  river’  is  not 
restricted  in  its  meaning  to  waters  which  are  infinenced  hy  the 
tides  of  the  sea,  but  extends  to  all  rivers  whi(*li  are  callable  of 
being  navigated  in  fact.” 

Genesee  Chief  v.  Fltzhugh,  12  How.,  448  (58  IT.  S.,  288), 
overruling  The  Thomas  Jefferson,  10  Wheat.,  428,  and 
The  Orleans,  11  Peters,  175. 

The  Montello,  20  Wall.,  448. 

The  Daniel  Ball,  10  Wall.,  557. 


G72 


Jones  V.  Hoiilard,  (>5  U.  S.  (2-1-  How.),  41,  GO ; !(>  L.  Hd.,  604. 

Paelun-  v.  Bird,  11  Sup.  Ct.,  210,  212;  137  IT.  S.,  661  ; 34  L. 
Ed.,  819. 

/Ivcl  oh  V.  nine,  23  Ohio  St.,  523,  527 ; 13  Am.  Kep.,  255. 

Miller  v.  City  of  Neiv  Yorh,  109  IT.  S.,  385;  3 Siij).  Ct.,  228, 
234 ; 27  L.  Ed.,  971. 

State  V.  Baum,  38,  S.  E.,  900,  901 ; 128  N.  Cai*.,  (iOO. 

Barney  v.  Keokulc,  94  U.  S.,  324  (1876 — Miss.  Kiver)  was  an 
action  of  ejectment.  Plea,  title  in  defendant.  Held  that  plaintiff 
owned  the  fee,  hut  subject  to  the  easement  of  public  use.  By  the 
court : 

^‘The  confusion  of  navigable  with  tide-water,  found  in  the 
monuments  of  the  common  law,  long  prevailed  in  this  country, 
notwithstanding  the  broad  differences  existing  between  the 
extent  and  topography  of  the  British  Island  and  that  of  the 
American  continent.  It  had  the  influence  for  tiro  generations 
of  excluding  the  admiralty  jurisdiction  from  our  great  rivers 
and  inland  seas;  and  under  like  influence  it  laid  tlie  foundation 
ill  many  States  of  doctrines  with  regard  to  the  ownership  of 
the  soil  in  navigable  waters  above  tide-water  at  variance  with 
sound  principles  of  public  policy.  Whether,  as  rules  of  prop- 
erty, it  would  now  be  safe  to  change  these  doctrines  where  they 
have  been  applied,  as  before  remarked,  is  for  the  several  States 
themselves  to  determine.  If  they  choose  to  resign  the  riparian 
proprietor  rights  uliich  properly  belong  to  them  in  their  sov- 
ereign capacity,  it  is  not  for  others  to  raise  objections.’’ 

This  variance  from  principles  of  sound  public  policy  ought  to  be 
no  further  extended. 

‘ AVe  have  thousands  of  miles  of  public  navigable  water,  in- 
cluding lakes  and  rivers,  in  which  there  is  no  tide.  The  juris- 
diction is  here  made  to  depend  upon  the  navigable  character  of 
the  water,  and  not  on  the  ebb  and  flow  of  the  tide.  ’ ’ 

The  Genesee  Chief  v.  Fitzhugh,  53  IT.  S.  (12.  How.),  443, 
455;  13  L.  Ed.,  1058. 

Lamprey  v.  State,  53  N.  W.,  1139,  1143;  52  Alinm,  181; 
18  L.  R.  A.,  670;  38  Am.  St.  Rep.,  541. 

Diedrich  v.  Northivestern  Union  By.  Co.,  42  Wis.,  248, 
263 ; 24  Am.  Rep.,  399. 

‘‘By  the  common  law  in  England  the  test  of  navigability  of 
a stream  was  the  ebb  and  flow  of  the  tides,  hut  that  rule  never 
l)revailed  in  this  country,  because  it  was  ina])plicahle  to  its  (‘on- 


G73 


(lit ions.  We  liave  vivors  Tuivigable  for  thoiisaTals  of  miles,  and 
eapablo  of  tloating  the  commerce  of  the  world,  whicli  are  tide- 
less. P»y  the  Roman  civil  law,  rivers  in  which  the  flow  of  water 
is  perennial  belong  to  the  public,  and  they  were  navigable  if 
they  were  capable  of  being  navigated  in  the  common  sense 
meaning  of  that  term.  According  to  the  Digest,  a navigable 
I'iver  is  ‘statio  iturve  navigio.’  The  Code  Napoleon  speaks  of 
navigable  river  as  ^flottables that  is,  rivers  admitting  floats. 
The  rule  of  the  civil  law  %as  ever  prevailed  in  the  United 
States,  and  is  another  instance  of  our  great  obligation  to  that 
splendid  system  of  jurisprudence  'which  ivas  developed  by  the 
Homan  peopled' 

Ten  Eyk  v.  Town  of  Warwick,  75  Hun. , 562 ; 27  N.  Y.  Supp., 
536,  538. 

Uigraham  v.  Wilkinson,  21  Mass.  (4  Pick.),  268,  271;  16 
Am.  Dec.,  342. 

Stuart  V.  Clark’s  Lessee,  32  Tenn.  (2  Swan),  9,  13;  58  Am. 
Dec.,  49. 

‘‘As  commonly  used,  the  term  ‘navigable  waters,’  in  one  of 
its  meanings,  includes  all  waters,  whether  within  or  beyond  the 
ebb  and  flow  of  the  tide,  which  can  be  used  for  navigation.” 

Commomvealth  v.  Vincent,  108  Mass.,  441,  447. 

“In  this  country  all  rivers,  without  regard  to  the  ebb  and 
flow  of  the  tide,  are  generally  regarded  as  navigable  as  far 
as  they  may  be  conveniently  used  at  seasons  of  the  year  by 
vessels,  boats,  barges,  or  other  water  craft  for  purposes  of 
commerce.  Further  than  this,  what  constitutes  a navigable 
river  free  to  the  public,  is  a question  of  fact  to  be  determined 
by  the  natural  conditions  in  each  case.” 

Ihicki  V.  Cone,  25  Fla.,  1;  6 South.,  160,  161. 

Gaston  v.  Mace,  33  W.  Va.,  14;  10  S.  E.,  60,  62 ; 5 L.  R.  A., 
392 ; 25  Am.  St.  Pep.,  848. 

Broadnax  v.  Baker,  94  N.  Car.,  675,  681;  55  Am.  Rep.,  633. 

“In  the  United  States  the  legal  meaning  of  the  word  nav- 
igable has  been  much  extended,  and  it  is  not  limited  to  streams 
which  are  capable  of  bearing  ships  on  their  bosoms,  but 
includes,  generally,  all  waters  practically  available  for  float- 
ing commerce  by  any  method — whether  by  rafts  or  boats.” 

Falls  Mfg.  Co.  v.  Oconto  Biver  Imp.  Co.,  87  IVis.,  134; 
58  N.  W.,  257,  261. 


674 


Tan  I^yaL  v.  Toirn  of  Wanvick,  75  iriin.,  562;  27  X.  Y. 
Slip}).,  55f),  55S. 

Lampratj  v.  State,  52  Minn.,  181  ; 52,  N.  W.,  112,9,  1142;  18 
L.  1^.  A.,  670;  28  Am.  St.  Rep.,  541. 

Buckl  V.  Cone,  25  Fla.,  1 ; (i  Soiitli.,  160,  161. 

“As  tlie  servitude  of  public  interests  depends  rather  on  the 
piir])ose  for  wliich  the  public  requires  the  use  of  the  stream 
than  any  ])articular  mode  of  use.” 

'Moore  v.  Sanhorne,  2 Midi.,  519,  524,  527;  59  Am.  Dec., 
209. 

“A  more  appropriate  criterion  of  a navigable  river  is  not 
the  flow  and  reflow  of  the  tide,  but  simply  tlie  fact  wlietlier 
the  river,  in  its  ordinary  state  of  water,  is  capable  of,  and 
suited  to,  the  usual  purposes  of  navigation  by  sea  vessels, 
such  as  are  employed  in  the  ordinary  purposes  of  commerce, 
whether  foreign  or  inland,  and  whether  steam  or  sail.” 

Sigler  v.  State,  66  Tenn.  (7  Baxt.),  492,  496. 

Bnrke  County  Com’rs  v.  Cataivha  Lumber  Co.,  116  N. 
Car.,  721;  21  S.  E.,  941,  942;  47  Am.  St.  Rep.,  829. 

•Stuart  V.  Claris s Lessee,  22  Tenn,  (2  Swan),  9,  12;  58  Am. 
D!ec.,  49. 

Hodges  v.  Williams,  95  N.  Car.,  221,  222;  59  Am.  Rep.,  242. 

“A  distinction  is  taken  by  the  common  law  between  streams 
which,  in  the  common  acceptation  of  the  term,  are  suited  to 
some  purposes  of  navigation,  and  small,  shallow  streams, 
which  are  not  so.  In  respect  to  the  former,  which  though  not 
navigable  in  the  sense  of  the  law,  are  yet  of  sufficient  depth 
naturally  for  valuable  floatage,  as  for  rafts,  flatboats,  and  per- 
haps small  vessels  of  lighter  draught  than  ordinary,  while  it  is 
settled  that  the  right  of  property  in  the  bed  of  a stream  is 
vested  in  the  riparian  proprietor,  still  it  is  equally  well  settled 
that  the  public  have  the  right  to  a free  enjoyment  of  such 
stream  for  the  purposes  of  navigation  to  which  it  is  naturally 
adapted.” 

Webster  v.  Harris  (Tenn.)  69  B.  W.,  782,  782;  59  L.  R. 
A.,  224 

“A  bayou  susceptible  of  navigation  by  small  steamboats, 
flats,  and  other  craft  is  a navigable  stream.” 

Goodwill  V.  Police  Jury,  28  La.  Ann.,  752,  772. 


“ ‘ Njivii*'al)lo  slrennis’  arc  stroaiiis  of  sufficacirit  width  aud 
depth  for  valuable  tloata^e.” 

'ruscdloosd  County  v.  Foster,  11)2  Ala.,  292;  2>1  South., 
587,  589. 

‘^ddie  rule  now  most  generally  adopted,  and  tliat  wliich 
seems  best  fitted  to  our  own  domestic  conditions,  is  that  all 
water  courses  are  regarded  as  navigable  in  law  which  are 
navigable  in  fact;  that  is,  that  the  public  have  the  right  to  the 
nnobstructed  navigation,  as  a public  highway  for  all  purposes 
of  pleasure  or  profit,  of  all  water  courses,  whether  tidal  or 
inland,  that  are  in  their  natural  condition  capable  of  such  use. 
A branch  of  a sound  which  was  from  2 to  4 feet  deep,  and  from 
140  to  300  yards  wide,  and  was  used  by  the  public  for  passing 
in  boats  from  one  part  of  the  sound  to  the  other,  which  short- 
ened the  distance,  and  was  safer  in  rough  weather,  constituted 
a navigable  stream.” 

State  V.  Baum,  128  N.  Car.,  600;  38  S.  E.,  900,  901. 

‘‘Most  of  the  definitions  of  ‘navigability’  in  the  decided 
cases  seem  to  convey  the  idea  that  the  water  must  be  capable 
of  some  commerce  of  pecuniary  value,  as  distinguished  from 
boating  for  mere  pleasure.  But  if,  under  present  conditions  of 
society,  bodies  of  water  are  used  for  public  uses  other  than 
mere  commercial  ‘navigation,’  in  its  ordinary  sense,  we  fail  to 
see  why  they  ought  not  to  be  held  to  be  public  waters,  or 
‘navigable’  waters  if  the  old  nomenclature  is  preferred.  Cer- 
tainly we  do  not  see  why  boating  or  sailing  for  pleasure  should 
not  be  considered  navigation  as  well  as  boating  for  mere  |)ecu- 
niary  profits.  Many,  if  not  the  most,  of  the  meandered  lakes 
of  this  state  are  not  adapted  to,  and  probably  will  never  be 
used  to  any  great  extent  for,  commercial  navigation ; but  they 
are  used,  and,  as  population  increases  and  towns  and  cities  are 
built  up  in  their  vicinity,  will  be  still  more  used,  by  the  people 
for  sailing,  rowing,  fishing,  fowling,  bathing,  skating,  taking 
water  for  domestic,  agricultural,  and  even  city  pur})oses,  cut- 
ting ice,  and  other  public  purposes  which  cannot  now  be 
enumerated  or  even  antici];)ated.  To  hand  over  all  these  lakes 
to  private  ownership,  under  any  old  or  narrow  test  of  naviga- 
bility, would  be  a great  wrong  n])on  the  public  for  all  time,  the 
extent  of  which  cannot  perhaps  be  now  even  antici])ated.” 

Lamprey  v.  State,  53  N.  W.,  1139,  1143;  52  Minn.,  181; 

18  L.  R.  A.,  670;  38  Am.  St.  Rep.,  541. 

“Where  a stream  within  tide  water  is  navigahle  for  pleasure 
boating,  it  must  be  regarded  as  navigable  water,  though  no 
craft  has  ever  been  upon  it  for  the  ])ur])ose  of  trade  or  agri- 


(*nltui‘(‘.  In  (letei-iuining  wlietlier  a stream  is  Tiaviga])le,  tlie 
])nri)()se  of  tlie  navigation  is  not  the  subject  of  tlie  inquiry,  hut 
tli(‘  fa(*t  ot  the  capacity  of  tlie  water  for  use  in  navigation.” 

Aftorney  General  v.  Woods,  108  Mass.,  486,  440;  11  Am. 
Itep.,  880. 


IT. 

REMOVABLE  DIEEICULTIES  AND  PARTIAL  LIMITATIONS  DO  NOT  CONTROL 

NAVIGABILITY. 

1.  The  existence  of  obstructions  and  interruptions  not  con- 

trolling; and 

2.  Stream  need  not  he  navigable  in  entirety. 

Schidte  V.  Warren,  218  111.  App.,  at  p.  120. 

The  Montello,  20  Wall.,  420  (1874 — Fox  Kiver,  Wis.) 

St.  Anthony  Water  Power  Co.  v.  Water  Comm’rs.,  168 
U.  S.,  849.  ( 1897— Miss.  Elver. ) 

The  last  case  cited  was  a bill  for  ah  injunction  to  restrain  de- 
fendants from  diminishing  the  water  power  alleged  to  belong  to 
complainants.  Defense  contended  that  the  river  was  a navigable 
stream  and  the  bed  thereof  belonged  to  the  State.  The  bill  was 
dismissed. 

By  the  court,  at  p.  859 : 

‘Mn  order  to  be  navigable,  it  is  not  necessary  that  it  should 
he  deep  enough  to  admit  the  passage  of  boats  at  all  portions 
of  the  stream.  * * * n navigable  below  the  rapids 

and  navigable  above  the  rapids.” 

The  Montello,  20  MMll.,  430  (1874 — Fox  Kiver,  Wis.)  was  a 
libel  by  the  United  States  for  "^oncompliance  with  the  enrollment 
and  license  act.  Contended  that  zhe  Fox  Kiver  was  not  a ‘^navi- 
gable water”  of  the  United  States. 

• By  DAVIS,  J.,  at  pp.  442-3 : 

“Apart  from  this,  however,  the  rule  laid  down  by  the  district 
judge  as  a test  of  navigability  cannot  be  adopted,  for  it  would 
exclude  many  of  the  great  rivers  of  the  country  which  were  so 
interrupted  by  rapids  as  to  require  artificial  means  to  enable 
them  to  be  navigated  without  .break.  Indeed,  there  are  but  few 
of  our  fresh  water  rivers  which  did  not  originally  present  seri- 
ous obstructions  to  an  uninterrupted  navigation.  In  some 


(*ns(\s,  like  tlio  Fox  Kivor,  they  niay  he  so  ^reat  while  they  last 
as  to  prevent  tlie  use  of  the  best  instruinentalities  for  earryin^i^ 
on  eonnneree,  but  the  vital  and  essential  f)oint  is  whether  the 
natural  navigation  of  the  river  is  such  that  it  affords  a (diannel 
for  nsefnl  eoinnieree.  If  this  be  so,  the  river  is  navigable  in 
faet,  although  its  navigation  may  be  encompassed  with  difficul- 
ties by  reason  of  natural  barriers,  such  as  rapids  and  sand 
bars.” 

To  same  effect  are  Spooney  v.  McConnell,  Fed  Cas.,  13,245 ; 
Attorney  General  v.  Harrison,  12  Grant’s  Ch.,  (U.  0.),  466.  (Out.) 

Xew  York — Hensler  v.  Hartman,  16  Abb.,  N.  C.  (N.  Y.), 
176 — Xote.  (1878 — Niagara  Eiver.) 
was  an  action  of  ejectment  to  recover  ‘Tnade”  land  in  the  Niagara 
River.  It  was  contended  and  decided  that  plaintiff  had  no  title, 
the  lot  in  question  belonging  to  the  State. 

Per  John  G.  Milburn,  Referee  : 

“No  proof  was  made  of  the  navigability  of  Niagara  River, 
but  I think  judicial  notice  may  be  taken  of  the  fact.” 

New  York — ]\Iatter  of  State  Reservation  at  Niagara.  16 
Abb.,  N.  C.  (N.  Y.),  159.  (1884 — Niagara  River.) 

This  was  a hearing  before  commissioners  to  assess  damages  for 
land  taken  by  the  State  of  New  York.  As  to  certain  islands  that 
were  taken,  it  was  claimed  that  as  they  were  situated  in  a navigable 
river  they  already  belonged  to  the  State,  which  claim  was  upheld. 
At  p.  187 : 

“A  river  navigable  in  its  general  character  does  not  change 
its  legal  characteristics  in  that  respect  by  recent  disturbance 
which,  at  a given  point,  breaks  the  continuity  of  the  actual 
navigation.”  (MARSH,  Commissioner.) 

At  p.  190: 

“The  river  is  navigable  above  the  Rapids,  and  is  also 
navigable  below  the  Palls.  The  (luestion  is.  whether  a differ- 
ent rule  as  to  title  can  be  laid  down  for  that  section  of  the 
river  which  is  rendered  unnavigable  by  rocks,  sudden  descents 
and  precipices?  We  do  not  see  that  such  a distinction  is  prac- 
ticable, nor  have  we  been  referred  to  any  authority  requiring 
us  to  so  hold.”  (HALF,  Commissioner.) 

In  the  same  case  on  appeal  {Matter  of,  State  Reservation  at 
Niagara,  37  Hun.,  537,  547),  the  court,  Rradley,  J.,  said: 

‘ So  far  as  our  attention  has  been  called  to  any  authority  re- 
lating to  this  river,  it  has  been  recognized  and  treated  as,  in 


every  sense,  a ])iil)lie  river,  as  niiieli  as  if  it  was  an  arm  of  the 
sea  in  whieh  the  tide  flowed,  and  acknowledged  as  such.  {Tih- 

6V/.s‘c,  17  Went,  f)2d;  Kingman  v.  Sparrow,  12  Bari).,  201.) 
i\nd  we  think  because  it  is  mavigable  in  fact,  and  constitutes 
the  natural  boundary  between  this  and  anotlier  country,  is  the 
reason  why  the  })roprietary  riglit  from  its  margin  to  such 
boundary  line  is  in  the  State,  and  that  the  riparian  owners 
liave  taken  by  the  grant  referred  to  only  to  the  water’s 'edge  of 
tlie  stream.  And  tliat  the  fact  that  at  the  particular  place  in 
(piestion  the  river  is  not  navigable  by  reason  of  the  interrup- 
tion produced  by  the  falls,  does  not  qualify  or  distinguish  it  in 
tliat  locality  as  a public  river  from  its  general  character.  We 
do  not  deem  it  necessary  for  the  purposes  of  tliis  case  to 
further  express  any  opinion  in  respect  to  the  applicability  of 
the  common  law  doctrine  referred  to,  to  the  large  rivers  in  this 
State  which  constantly  afford  facilities  for  floating  large  ves- 
sels, except  when  navigation  is  interrupted  by  ice.” 

(87  Hun.,  547-8.) 

North  Carolina — Broadnax  v.  Baker,  94  N.  Car.,  675. 

(1886 — Roanoke  River.) 

This  was  a motion  to  continue  a restraining  order,  restraining 
defendants  from  operating  a transportation  line  on  the  Roanoke 
River  between  the  starting  point  and  Mason’s  Landing,  or  any 
other  landing  place  within  five  miles  of  a ferry  owned  by  plain- 
tiffs. It  was  contended  that  said  river  was  a navigable  stream  and 
that  the  defendant  had  a right  to  operate  a transportation  line 
thereon.  The  decision  was  in  accordance  with  that  contention. 

By  the  court : 

^‘Navigable  waters,  constituting  highways,  are  not  ascer- 
tained here,  as  they  are  in  England,  an  island  accessible  to 
ocean  tides,  by  the  extent  of  their  ebb  and  flow,  but  by  a more 
practical  test  of  their  capacity  to  float  boats  used  as  instru- 
ments of  commerce,  in  the  interchange  of  commodities,  and 
large  enough  for  the  purpose.  Such  waters  lose  not  their 
navigability,  because  intercepted  by  falls,  when  above  and  be- 
low them,  the  waters  can  be  thus  used  for  the  purpose  of  com- 
merce for  long  distances. 

******* 

” Rivers  having  capacity  to  float  boats  used  as  instruments 
of  commerce  do  not  lose  their  navigability  because  intercepted 
by  falls,  when  above  and  below  them  the  waters  can  be  thus 
used  for  the  puiq)ose  of  commerce  for  long  distances.  Under 
such  circumstances  they  remain  highways  for  common  use.” 
{Broadnax  v.  Baker,  9-i  X.  Car.,  675,  781;  55  Am.  Ke]).,  688.) 


G79 


f 


“Whether  a fresli  vvatei-  stream  is  iiavi^ahhi  oi*  not  (l()(\s  not 
depend  on  the  mode  by  \vhi(*h  (•oniiner('e  is  oj*  may  ix*  eon- 
diieted  on  siieh  stream,  nor  the  diffl(mlties  attend in^^  navigation 
thereon.” 

GoodirUl  V.  Police  Jar?/  of  Bossier  Parish,  l.a.  Ann., 
752. 

“A  stream  is  still  ‘navigable’  notwithstanding  a partial 
change  in  the  mode  of  its  navigation  by  the  erection  of  a bridge 
through  and  under  which  scows,  gondolas,  and  boats  and  ves- 
sels without  masts,  or  with  falling  or  movable  masts,  may  ad- 
vantageously pass  and  repass,  loaded  or  empty/’ 

Inhabitants  of  Charleston  v.  Middlesex  County  Com/rs., 
44  Mass.  (3  Mete.),  202,  205. 

“Goldwaithe,  J.,  says  to  make  a ‘navigable’  stream  three 
circumstances  must  concur:  (1)  The  stream  must  have  suf- 
ficient width,  (2)  sufficient  depth,  and  (3)  a freedom  from  in- 
surmountable obstructions.” 

State  V.  Bell,  5 Port.  (Ala.),  365. 

“A  river  may  l)e  said  to  he  ‘navigable’  when  only  its  lower 
portion  is  such,  and  thus  Laws  1898,  c.  469,  re(|uiring  the 
i*estoration  of  navigable  streams  injured  by  a diversion  of 
waters,  applies  to  a stream  navigable  at  its  mouth,  though  it 
does  not  api)ear  to  be  navigable  at  t!ie  ])lace  of  diversion.” 

Toirn  of  Hempstead  v.  City  of  Neir  Yorh,  65  N.  Y.  Su])])., 
14,  18;  52  A])p.  Div.,  182. 

See  foot  note,  1 Parnham,  ]).  123,  stating  the  gist  of  the  (kinadian 
statute  and  of  6 decisions  thereon  concluding  in  the  Privy  (k)nncil. 
The  Canadian  statute  provides  that  it  shall  be  lawful  for  all  per- 
sons to  float  saw  logs  down  all  streams  in  up])er  Canada  during  the 
spring,  summer  and  autumn  freshets.  ( )ne  of  the  earliest  decisions 
under  this  statute  held  that  it  gave  no  right  to  float  timber  on 
streams  which  were  not  floatable  in  their  natural  state.  This  was 
overruled,  then  re-established,  but  Anally,  in  the  Privy  (y\)unci!,  it 
was  held  that  the  statute  was  not  so  limited,  “but  extends  to  all 
streams,  including  those  which  had  been  made  floatable  by  im- 
provements made  by  riparian  owners.”  Caldwell  v.  McJjitren, 
L.  R.,  9;  App.  Cas.,  392.  P>LACIvBIIRN,  L.  J.,  there  said: 

“AVhen  once  it  is  shown  that  there  is  a suflicient  body  of 
water  above  and  below  the  spot  where  the  natural  impediment 


(‘xisis,  tlioufjli  tlidf  mdural  impedhmant  renders  the  stream  at 
that  point  practicalhj  unfioatahle,  it  does  not  make  it  cease  to 
be  a part  of  tlie  stream  in  the  ordinary  sense  of  the  words.” 

Tliat  sucli  streams  are  proper  subjects  of  improvement  as 
natural  liigiiways  is  expressly  lield  in  Benjamin  v.  Manistee  Im- 
provement Co.,  42  Mich.,  428;  und  in  re  Burns,  155  N.  Y.,  23;  S. 
Car,.  49;  N.  E.,  24(). 

3.  Perennial  navigahility  is  not  essential.  It  is  not  necessary  that 

the  stream  he  navigable  all  the  year  ’round. 

1 Farnbam,  sec.  25,  p.  121. 

Cai)acity  for  navigation  in  a period  sufficiently  regular  and  con- 
tinued to  make  the  stream  available  for  travel  or  commerce  is  suf- 
ficent. 

Arkansas — Little  Bock,  etc.,  R.  Co.  v.  Brooks,  39  Ark., 
403.  (1882 — Bayou  Bartholomew.) 

was  an  action  for  damages  against  defendant  for  obstructing  the 
free  passage  of  the  Bayou  Bartholomew,  claimed  to  be  a navigable 
stream.  Defence,  that  it  was  not  navigable.  Judgment  for  plain- 
tiff. 

By  the  court : 

‘^B}"  the  American  doctrine,  tide  water,  as  a criterion  of 
navigable  character,  has  been  discarded.  Nor  is  it  any  objec- 
tion to  the  public  easement  for  navigation,  thalt  h'iparian 
proprietors  of  lands,  along  fresh  waters,  own  to  the  thread  of 
the  stream.  Nor  is  it  necessary  that  the  stream  should  be 
capable  of  floating  boats  or  rafts  the  whole,  or  even  the  greater 
])art  of  the  year.  * * * jf  its  natural  state,  without 

artificial  improvements,  or  may  be  prudently  relied  upon  and 
used  for  that  purpose  at  some  seasons  of  the  year,  recurring 
with  tolerable  regularity,  then,  in  the  American , sense,  it  is 
navigable,  although  the  annual  time  may  not  be  very  long.” 

In  this  case,  such  annual  time  was  from  six  weeks  to  six  months. 

^^A  stream  capable  of  being  used  for  purposes  of  commerce 
is  ‘navigable,’  even  though  it  may  not  be  adapted  to  such  use 
continuously  throughout  all  the  seasons.” 

Broivn  v.  Chadhourne,  31  Me.,  9,  21 ; 1 Am.  Eep.,  641. 

Bucki  V.  Cone,  6 South.,  160,  161;  25  Fla.,  1. 

“If  it  is  ordinarily  subject  to  periodical  fluctuations,  at- 
tributable to  natural  causes,  recurring  as  regularly  as  the 


G8T 


seasons,  and  if  its  jxn-iods  of  u^atxn-  on  navi^'ahlo  oapacaty 
ordinarily  ('ontiniu^  a surficierit  Ieny;tli  of  lime  to  niako  it  usotiil 
as  a highway,  it  is  subject  to  public  easement.” 

Olson  V.  Merrill,  42  Wis.,  203,  212. 

Ten  Eyck  v.  Totvn  of  Warivick,  27  N.  Y.  Supp.,  536,  538 ; 
75  Him.,  562. 

stream  need  not  be  navigable  at  all  seasons  of  the  year 
in  order  to  be  considered  a navigable  stream,  but  a stream, 
navigable  only  during  periodical  stages  of  liigli  water,  is  to 
be  considered  a navigable  stream  at  those  seasons.” 

Thunder  Bay,  etc.,  Co.,  v.  Speechley,  31  Mich.,  336;  18 
Am.  Rep.,  184. 

4.  It  is  not  necessary  to  he  navigable  against  the  current. 

1 Farnliam  on  Waters,  Sec.  25,  p.  121;  Angell  on  High- 
ways, 45. 

Tennessee — Sigler  v.  The  State,  7 Baxt.  (Tenn.),  493. 
(1874 — Big  Creek.) 

was  an  indictment  for  nuisance  for  felling  trees  in  Big  Creek  and 

thereby  obstructing  navigation.  Judgment  of  conviction  affirmed. 

The  court,  quoting  Angell  on  Highways,  45,  says: 

^The  ebb  and  flow  is  not  the  only  test;  nor  is  the  public 
easement  always  formed  upon  usage  or  custom;  the  test  is, 
whether  there  is  in  the  stream  capacity  for  use  for  the  purpose 
of  transportation  valuable  to  the  public;  and  in  this  view  it  is 
not  necessary  that  the  stream  should  have  a capacity  for 
floatage  at  all  seasons  of  the  year,  nor  that  it  shoidd  he  avail- 
able for  use  against  the  current  as  ivell  as  ivith  it.  If,  in  its 
natural  state  and  with  its  ordinary  volume  of  water,  either 
constantly,  or  at  regularly  recurring  seasons,  it  has  such 
capacity  that  it  is  valuable  to  the  public,  it  is  sufficient.’  ” 

^‘As  some  streams  are  not  navigable  against  their  currents, 
if  they  are  floatable  in  their  natural  state,  so  as  to  be  of  public 
use  with  the  current,  their  public  cliaracter  is  liberally  sup- 
ported.” 

Ten  Eyck  v.  Toum  of  Warwick,  75  Hun.,  562;  27  N.  Y. 
Supp.,  536,  538. 

And  see  quotation  supra  from: 

Grant  v.  Gordon,  Mor.  Die.  (L.  R.  2,  App.  Cas.  872.) 

that  a stream  wbich  can  take  the  products  of  the  forest  to  the 
sea  is  a public  stream. 

1 Farnliam,  p.  121. 


5. 


Acludl  use  is  not  neeessarij. — (Capacity  for  use  is  sufficient. 

The  public  has  a right  of  passage  over  all  fresh  water  streams 
whi(*h  are  by  nature  susceptiJde  of  general  use,  and  those  rivers 
ai*e  i)ublic  and  naviga])le  in  law  which  are  navigalhe  in  fact. 

IJ.  ^.—The  Daniel  Ball,  10  Wall.,  557.  (1870— Grand 

River.) 

was  a libel  by  the  United  States  for  failure  to  have  the  steamship 
Daniel  Ball  inspected  and  licensed  according  to  an  Act  of  Congress. 
Defense,  that  the  Grand  River  was  not  a navigable  water  of  the 
United  States.  Held  that  a decree  for  the  penalty  provided  should 
be  entered.  By  the  court,  Mr.  Justice  Field: 

^‘The  doctrine  of  the  common  law  as  to  the  navigability  of 
waters  has  no  application  in  this  country.  Here  the  ebb  and 
flow  of  the  tide  do  not  constitute  the  usual  test,  as  in  Eng- 
land, or  any  test  at  all  of  the  navigability  of  waters.  * * * 

A different  test  must,  therefore,  be  applied  to  determine  the 
navigability  of  our  rivers,  and  that  is  found  in  their  navigable 
capacity.  Those  rivers  must  be  regarded  as  public  navigable 
rivers  in  law  which  are  navigable  in  fact.  And,  they  are 
navigable  in  fact  when  they  are  used,  or  are  susceptible  of 
being  used,  in  the  ordinary  condition,  as  highways  for  com- 
jnerce,  over  which  trade  and  travel  are  or  may  be  conducted 
in  the  customary  modes  of  trade  and  travel  on  water.  ’ ’ 

Ohio— Hickok  V.  Hine,  23  Ohio  St.,  523.  (1872— Grand 

River.) 

A bill  for  injunction  to  restrain  defendants  from  building  a 
bridge  across  the  Grand  River  in  such  a manner  as  to  obstruct 
navigation.  Contended  that  the  river  was  not  navigable.  In- 
junction granted.  By  the  court: 

‘ ‘ The  character  of  a river,  as  such  highway,  is  not  so  much 
determined  by  the  frequency  of  its  use  for  that  purpose  as  it 
is  by  its  capacity  of  being  used  by  the  public  for  purposes  of 
transportation  and  commerce.” 

‘‘Tile  doctrine  of  the  common  law  that  the  navigability  of 
a stream  is  to  be  determined  by  the  ebb  and  flow  of  the  tide 
was  repudiated  in  South  Carolina  in  the  case  of  State  v.  Pa- 
cific Guano  Co.,  22  S.  Car.,  50.  Judge  Wallace,  in  his  circuit 
decree,  vdiicli  was  affirmed  in  such  case,  says:  ‘If  a channel, 
therefore,  in  which  the  tide  ebbs  and  flows,  and,  in  the  lan- 
guage of  the  civil  law,  is  floatable,  can  be  used  for  the  purpose 
of  trade  and  commerce,  it  is  a navigalile  stream.  Neither  the 
character  of  the  craft,  nor  the  relative  ease  or  difficulty  of  the 


, are  tests  of  yuivi()(itnllt}i.  A streain  niiay  not  bo 
usoful  for  (‘oininoivo  at  one  tiino,  and  y(‘t  circumst(m(‘es  nuiy 
make  it  so.  The  test  of  fiavifjalhlity  is  naviyahle  capaeAty, 
nAthoat  regard  to  the  eharaeter  of  the  craft,  the  tyusiness  done, 
the  ease  of  navigaAAoa , tlie  surroundings  of  the  stream,  or 
wlietlier  it  oonneots  with  another  stream  or  highway,  or  Hows 
up  into  a private  estate.’  ” 

Heyward  v.  Farmers'  Min.  Co.,  42  S.  Oar.,  128;  19  S.  P]., 
962,  970;  28  L.  R.  A.,  42;  46  Am.  St.  Rep.,  702. 

‘‘Any  stream,  though  above  tide- water,  is  a navigable  water, 
if  ‘of  sufficient  capacity  to  float  the  products  of  the  mines,  the 
forests,  or  the  tillage  of  the  country  through  Avhich  they  flow, 
to  market.'^  ” 

Lewis  V.  Coffee  County,  77  Ala.,  190,  192 ; 54  Am.  Rep.,  55. 

Sullivan  v.  Spotswood,  82  Ala.,  162;  2 South.,  716,  717. 

Burke  County  Com'rs  v.  Catawba  Lwmher  Co.,  21  S.  E., 
941,  942 ; 116  N.  Car.,  721 ; 47  Am.  St.  Rep.,  829. 

“The  character  of  the  river  as  such  liighway  is  not  so  much 
determined  by  the  frequency  of  the  use  for  that  ])urpose,  as 
by  its  capacity  for  being  used  by  the  public  for  the  purpose  of 
transportation  and  commerce.” 

Hickok  V.  Hine,  22  Ohio  St.,  522,  527 ; 12  Am.  Rep.,  255. 

Wisconsin — The  Attorney  General  v.  Smith,  109  AVis.,  522. 
(1901 — Lake  Alonona.) 

vv^as  a bill  filed  by  the  attorney  general  to  abate  and  remove  certain 
structures  erected  in  Lake  Alonona  alleged  to  be  pui‘})restures  and 
public  iruisances.  Contended  that  they  were  not  nuisances,  fludg- 
ment  entered  as  prayed  for  in  the  bill. 

By  the  court: 

“It  is  true  that  a purpresture  on  the  ])ublic  land  is  not  neces- 
sarily a public  nuisance.  Gould,  Waters  (2d  ed.)  sec.  21.  A 
])urpresture  is  a })ermanent  invasion  of  the  public  land.  A 
nuisance  is  an  injury  to  the  ])ublic  rights  of  navigation,  tisliing 
and  the  like.  It  is  true  that  it  has  been  held  in  California 
that  a court  of  equity  iii  this  country  has  not  the  ])ower  to 
decree  the  abatement  of  a mere  pur])resture  which  is  not  a 
})ublic  nuisance.  People  ex  rel.  Teschemacher  v.  Davidson, 
20  Ckil.,  279.  A different  comlusion  was,  however,  rea(‘lied  in 
People  V.  Vanderhilt,  26  N.  Y.,  287,  where  it  was  distinctly 
iield  that  a mere  })urpresture  is  liable  to  abatement  in  an  action 
in  ecpiity,  at  the  suit  of  the  attorney  general,  irresi)ective  of 
the  (luestion  whether  it  is  actually  a nuisance,  and  that  the 
offer  to  prove  that  a purpresture,  such  as  a pier  in  navigable 


ivdtcrs,  was  not  in  fact  injurious  to  navigation,  was  properly 
overruled.  Similar  conclusions  were  reached  in  lievell  v. 
People,  177  111.,  4f)8,  and  U.  S.  v.  Brighton  R.  Co.,  25  Fed.  Rep. 
4(15.  The  authorities  cited  in  those  cases  entirely  justify  the 
decisions,  and  we  have  no  hesitation  in  adopting  the  latter 
rule.” 

On  the  contention  that  a present  existing  continuous  navigation 
is  necessary  to  justify  an  injunction  this  case  is  directly  contrary 
to  the  earlier  holding  in  State  v.  Carpenter,  68  Wis.,  165,  which  was 
relied  on  by  the  court  below.  People  v.  St.  Louis,  5 Gilm.,  368, 
is  equally  clear  against  that  contention. 

By  the  court: 

‘‘Evidence  of  navigability  should  not  be  confined  to  the 
present  or  past  use  of  the  water  as  a highway  of  commerce  for 
the  transportation  of  agricultural  and  other  products  to  mar- 
ket, hut  the  capacity  for  such  use  must  be  considered,  and  the 
future  development  of  the  country  along  the  shores  of  the  bay 
or  of  new  channels  of  commerce  must  not  be  lost  sight  of, 
whether  a present  inquiry  may  develop  the  probability  of  such 
use  or  not.  ” 

(1984 — Highland  Bay.)  Jones  v.  Johnson,  6 Tex.,  Civ. 

App.,  262. 

6.  Public  right  not  lost  by  non-user. 

City  of  Alton  v.  III.  Transp.  Co.,  12  111.,  38  (1850 — Mississippi 
River)  was  an  action  of  ejectment  for  a lot  on  the  river  front 
dedicated  as  a public  landing.  Contended  that  there  was  no  dedi- 
cation, and  that  plaintiff’s  claim  was  barred  by  the  seven  years’ 
statute  of  limitations  after  fifteen  years’  adverse  possession.  Judg- 
ment for  plaintiff. 

By  the  Court : 

“Whether  an  adverse  possession  would  run  against  jorop- 
erty  thus  held,  we  do  not  now  propose  to  inquire,  but  we 
entertain  no  doubt  that  this  statute  does  not  apply  to  this  case, 
and  that  the  rights  of  the  public  in  this  dedication  have  not 
been  forfeited  by  non-nser  or  barred  by  adverse  possession.” 

Arundel  v.  McCulloch,  10  Mass.,  70  (1813 — Kennebunk  River) 
was  an  action  of  trespass  for  destroying  a bridge  across  the  Kenne- 
bunk River.  Contended  that  said  river  was  navigable,  that  said 
bridge  was  a nuisance  which  defendant  had  a right  to  abate. 
Judgment  for  defendant. 


By  the  (\)iirt  : 

“In  tills  case  no  such  authority  has  been  given;  and  the 
only  claim  of  a riglit  to  continue  the  bridge  rests  upon  the 
anti(|uity  of  the  bridge,  and  the  laying  out  of  a road  over  the 
river  in  tlie  year  1771.  But  we  think  that  neither  of  these 
facts  sanctioned  the  obstruction  of  the  river,  so  as  to  prevent 
those  ivho  had  occasion  to  transport  vessels  up  and  doivn  from 
removing  it,  if  necessary  to  a safe  and  convenient  passage. 
Public  rights  cannot  he  destroyed  by  long -continued  encroach- 
ments; at  least,  the  party  who  claims  the  exercise  of  any  right 
inconsistent  with  the  free  enjoyment  of  a public  easement  or 
privilege,  must  put  himself  upon  the  ground  of  perscription ; 
unless  he  has  a grant  or  some  valid  authority  from  the  gov- 
ernment. ’ ’ 

In  Commonwealth  v.  Charleston,  1 Pick.,  180  (1822 — Miller’s 
River)  defendants  were  indicted  for  not  repairing  two  bridges 
across  Miller’s  River.  Defense,  that  said  river  was  navigable  and 
they  were  not  bound  to  repair  the  bridges  as  they  themselves  were 
nuisances.  Judgment  for  defendants. 

By  the  Court: 

“It  has  been  urged  that  the  actual  use  of  them  for  such  pur- 
pose is  necessary  to  give  them  the  character  of  public  prop- 
erty ; but  it  is  obvious  there  can  be  no  such  qualification  of  the 
principle  at  common  law;  for  it  would  go  to  allow  the  occupa- 
tion, by  individuals  or  corporations,  of  many  of  the  most  im- 
portant public  privileges,  in  the  early  settlement  of  the  coun- 
try, before  ports  and  places  of  deposit  should  become  valu- 
able.” 

Title  in  canal  cannot  be  acquired  against  the  State  by  ad- 
verse possession. 

1 Farnham,  sec.  106,  p.  497. 


Penn.  Canal  Co.  v.  Harris,  101  Pa.  St.,  80  (1882 — Penn.  Canal), 
was  an  action  of  ejectment  to  recover  lands  alleged  to  belong  to  the 
State  as  canal  property.  Plea,  title  in  defendant.  Question  of 
title  undetermined. 

By  the  Court: 

“As  time  does  not  run  against  the  commonwealth,  and 
this  suit  was  brought  in  less  than  twenty-one  years  after  it 
])arted  witli  the  title,  no  adverse  possession  can  bar  plnintiff’s 
right  to  recover.  Hence,  the  remarks  of  the  learned  judge  as 
to  possession  of  defendant  since  1828  were  calculated  to  mis- 
lead the  jury.  They  should  be  distinctly  told  that  he  acquired 
no  title  by  virtue  of  his  possession.” 


'I' I IK  1‘UliKIC  KKUIT  IN  A NAVIGAIJI.K  WATER  COURSE  IS  NON-ALIEN- 


t . 


ABLE. 

Wast  Chicdfjo  St.  li.  It.  Co.  v.  People  ex  rel.  Chicago,  214 
III.  9.  (190r)-Chieago  Hiver.) 

A Petition  for  a writ  of  iiiaiidaiiius  hy  the  City  of  Chicago  to 
eoiiipel  the  I'esponderit  to  lower  the  tunnel  under  tlie  Chicago  Eiver 
at  Van  Buren  Street.  Contended  that  as  said  tunnel  was  built  un- 
der a license  from  the  city,  the  city  could  not  demand  that  it  be 
altered  or  changed. 

By  the  Court: 

“The  fitle  to  land  under  a navigable  river  is  not  the  same 
as  the  title  to  the  shore  land.  The  title  to  the  upland  is  abso- 
lute and  paramount,  while  the  title  to  the  lands  over  which 
the  navigable  water  flows  is  subordinate  to  the  public  right 
of  navigation.  In  a navigable  stream  the  public  right  is  para- 
mount, and  the  owner  of  the  soil  under  the  bed  of  such  a stream 
can  only  use  and  enjoy  it  far  as  is  consistent  with  the  pub- 
lic right,  which  must  be  free  and  unobstructed.  * * * * 

Under  these  established  rules  an  owner  who  erects  a structure, 
whether  it  be  a tunnel  or  whatever  it  may  be,  in  the  soil  under 
the  navigable  water,  does  it  at  his  peril,  and  if  it  becomes  an 
obstruction  to  the  paramount  right  of  navigation  he  may  be 
compelled  to  remove  it. 

“T/ie  city  could  not,  if  it  would,  grant  the  right  to  obstruct 
the  navigation  of  the  river,  or  bind  itself  to  permit  anything 
wlikh  has  become  an  obstruction  to  be  continued.' ’ 

This  case  was  taken  by  writ  of  error  to  the  Supreme  Court  of 
the  United  States  and  is  reported  in  201  U.  S.  506. 

By  Harlan,  J.,  at  p.  524: 

“ ‘The  privilege  of  navigation  upon  all  waters  which  are 
capable  of  such  use  in  their  natural  condition  amd  are  access- 
ible without  trespassing  upon  private  lands,  is  n common  and 
paramount  right.  * * * common  law  the  right  of  nav- 

igating a public  stream  is  paramount  to  the  right  of  passage 
across  the  stream  by  means  of  a bridge.’  Gould  on  Waters, 
secs.  86,  88. 

“If,  then,  the  right  of  the  railroad  company  to  have  and 
maintain  a tunnel  under  the  'Chicago  River  is  subject  to  the 
paramount  public  right  of  navigation;  if  its  right  to  maintian 
a tunnel  in  the  river  is  a qualified  one,  because  subject  to  the 
specific  condition  in  the  Act  of  1874  that  no  tunnel  should  in- 
terrupt navigation;  if  the  present  tunnel  is  an  obstruction  to 


087 

iijivig’niioii,  ns  upon  this  rc'rord  wo  nmsi  lak(‘  it  to  lx*;  and  it 
tlio  ('ity,  as  la'proiscMiiiu^-  the  Stato  and  pnl)li(5,  niay  i-i^-littnlly 
insist  that  siuhi  ohstnu'tion  shall  not  longor  rornain  in,  the  way 
of  t'roe  navigation;  it  necessarily  follows  that  the  T’ailway 
company  is  under  a duty  to  comply  with  the  demand  made 
upon  it  to  1‘emove,  at  its  own  exjiense,  the  obstruction  whicli 
itself  created  and  maintains.” 

Cox  V.  State,  3 Blackf.  (Ind.),  193  (1833— White  River)  was 
an  indictment  for  obstructing  the  navigation  of  the  White  River. 
Plea,  not  guilty. 

It  was  held  that  an  indictment  would  lie  for  placing  an  obstruc- 
tion in  said  river,  and  that  the  State  could  not  lawfully  authorize 
one  to  be  placed  therein. 

‘^The  legislature  has  no  more  authority  to  emancipate  itself 
from  the  obligation  resting  upon  it,  which  was  assumed  at  the 
commencement  of  its  statehood,  to  preserve  for  the  benefit  of 
all  the  people  forever  the  enjoyment  of  the  navigable  waters 
within  its  boundaries,  than  it  has  to  donate  the  school  fund 
or  the  state  capitol  to  a private  purpose.  It  is  supposed  that 
this  doctrine  has  been  so  firmly  rooted  in  our  jurisprudence 
as  to  be  safe  from  any  assault  that  can  be  made  upon  it.  The 
navigable  waters  of  the  state  belong  to  the  state,  and  the  lands 
under  them,  in  all  situations,  so  far  as  are  necessary  to  pre- 
serve inviolate  the  common  right  to  enjoy  those  incidents 
which  are  not  subject  to  private  ownership  in  navigable  waters 
at  common  law;  and  any  attempt  by  any  person  or  corporation 
to  violate  such  public  rights  to  the  special  injury  of  a particu- 
lar person,  as  wlien  an  attempt  is  made  to  take  from  such  per- 
son some  incident  of  his  title  to  the  shore  of  navigable  waters, 
may  be  restrained  by  a private  action.” 

Prince  v.  Wis.  St.,  L.  S J.  Co.;  103  Wis.  550;  79  N.  W. 

780;  74  Am.  St.  R.  904. 

People  ex  rel  Att’y  Gen.  \\  Kirk,  162  III.  138,  148. 

111.  C.  P.  Co.  V.  III.,  146  IT.  S.  387,  453. 

CANAL  TRUSTEES  V.  HAVEN,  5 GTLM.  548. 

Much  reliance  was  placed  on  this  case  by  the  defendant;  but 
rightly  understood,  it  is  believed  that  the  case  does  not  justify  such 
reliance.  The  entire  report  of  the  case,  exclusive  of  head  notes 
and  arguments  of  counsel,  reads  as  follows: 

(Agreed  Case) : 

^‘This  caise  was  submitted  to  the  Circuit  Court  of  AVill 


(188 


('ouTity,  at  the  October  term,  1848,  the  Hon.  Jesse  B.  Thomas, 
j)resi(liTig,  upon  an  agreed  statement  of  facts.  The  appellees, 
who  were  the  plaintiffs  below,  claimed  damages  of  the  appel- 
lants, defendants  below,  for  injury  to  their  mill,  resulting 
from  a divei\sion  by  said  defendants  of  the  water  of  the  Des 
lhaines  River,  from  the  mill  of  said  plaintiffs.  The  Circuit 
Court  (lecided,  upon  the  agreed  case  submitted  to  it,  that  the 
])laintiffs  were  entitled  to  damages,  the  amount  to  be  deter- 
mined in  the  manner  pointed  out  in  said  agreement.  Each 
party  to  the  agreement  stipulated  for  the  rigid  of  appeal,  and 
the  defendants  below  appealed  from  the  decision  of  the  Circuit 
(^urt.  The  agreed  case  is  set  forth  in  the  Opinion  of  the 
Court. 

^‘The  Opinion  of  the  Court  was  delivered  by 

Trumbull,  J.  This  case  comes  before  us  on  appeal  from 
the  decision  of  the  Circuit  Court  upon  the  following  agree- 
ment : 

(Agreed  Statement  of  Facts)  : 

‘The  plaintiffs  and  defendants  in  this  cause  agree  upon  the 
following  statement  of  facts  to  be  submitted  to  the  Court  for 
its  decision  thereon : 

The  plat  hereunto  annexed.  No.  1,  is  a plat  of  section  six- 
teen, in  township  thirty-five  north,  of  range  ten  east  of  the 
third  principal  meridian,  and  also  the  plat  of  section  nine,  in 
the  same  tovmship,  being  true  plats  of  said  sections  as  returned 
by  the  Surveyor  General  of  the  United  States,  and  deposited 
in  the  Land  Office  of  Chicago,  on  ivihich  said  plat  is  represented 
the  Des  Plaines  River,  as  it  runs  through  said  sections; 

(Meander  of  the  Des  Plaines) : 

And  it  is  admitted  that  said  Des  Plaines  River  is  mean- 
dered through  the  entire  length  of  said  sections,  as  appears 
by  the  minutes  of  said  survey,  in  the  said  Surveyor’s  Office,  a 
copy  of  which  minutes  is  also  attached,  marked  2,  and  deline- 
ated on  said  maps. 

(School  Section)  : 

It  is  also  admitted  that  said  section  sixteen  is  one  of  the 
sections  granted  by  Congress  to  the  State  of  Illinois,  for  the 
use  of  the  inhabitants  of  the  township  in  which  the  same  is 
situated  for  the  use  of  schools,  and  accepted  by  an  Ordinance 
of  the  26th  August,  1818,  accepting  certain  propositions  made 
by  Congress,  April  18,  1818. 

(Platting  of  School  Section)  : 

It  is  also  admitted  that  the  plat  hereto  annexed,  marked  3, 
is  a true  copy  of  the  plat  of  said  section  sixteen,  as  duly  laid 
out  and  sub-divided,  and  certified  and  acknowledged,  and  rec- 


(I'O 


()r(l(‘(l  iU'(‘()r(lii]i>-  to  Inw,  {iiid  as  set  forth  on  said  plat;  and  a, 
plat  of  said  Kivor  and  (^aival  witli  the  dams,  basins,  and  loc'ks, 
as  niad(^  and  (‘oiKstriudx'd  from  Loekpoi’t,  foiii-  and  a half  mihis 
a!)o\'('  tlio  said  plaintilfs,  to  and  below  the  said  y)lainti ff’s 
mills,  is  liereto  annexed,  marked  No.  4. 

(TlaintilT’s  Purehase  of  Property  in  Scliool  Section)  : 

It  is  also  admitted  tliat  at  a sale  of  lots  in  said  section  six- 
teen, in  October,  1884,  by  and  under  the  anthority  of  the  State, 
in  ])nrsnance  of  the  statute  in  such  case  made  and  provided, 
dohn  IT.  Kinzie  pnrchased  lots  one  and  two  in  block  fifty- 
seven,  and  that  Patents  issued  to  John  H.  K^inzie  for  the  same 
in  1835,  conveying  title  in  fee  simple,  as  by  law  directed,  and 
that  said  John  H.  Ivinzie  conveyed  to  Martin  H.  Demmond 
and  John  ^T.  Wilson  his  title  as  above  stated,  and  that  Martin 
II.  Demmond  and  John  M.  lYilson  subsequently  conveyed  the 
same  to  the  plaintitfs  herein.  Lots  one  and  four,  in  block 
fifty-six,  were  sold  at  the  sale  of  said  section  sixteen  in  1834, 
were  afterwards  purchased  by  the  plaintitfs  for  taxes,  and 
a deed  bearing  date,  — obtained  of  the  sheriff,  and  they  have 
until  this  time  remained  in  undisputed  possession  of  said  lots, 
except  so  much  of  them  as  has  been  appropriated  by  the  Canal. 

(Canal  History:  Canal  Construction  Begun  in  1836,  Dam  No.  1 
Built  by  Canal  Commissioners.) 

It  is  admitted  that  the  Illinois  and  Michigan  Canal  was 
commenced  in  1836,  and  that  i)ortions  of  the  Canal  through 
said  sections  were  put  under  contract  in  1838,  and  the  guard 
lock  on  section  nine  near  the  dam  across  said  Biver,  first 
above  said  section  sixteen,  was  commenced  in  1840,  by  digging 
the  pit  in  the  spring  and  a part  of  the  stone  laid  in  the  fall. 
The  stone  for  the  same  was  (|uarried  and  dressed  during  the 
spring  and  summer  of  the  same  year.  The  stone  foi*  the  said 
dam  on  section  nine  (which  is  a cement  and  cutstone  dam)  was 
commenced  being  (juarried  and  cut  the  same  season,  and  the 
dftm  was  commejiced  the  following  season,  iiii  the  spring,  and 
finished  in  the  fall  of*  1841.  The  contracts  for  huilding  said 
dam  and  locks  were  made  in  1839,  and  it  was  generally  under- 
stood as  early  as  1839,  that  said  lock  and  dam  were  to  be 
built. 

(Plaintitfs’  Mill  Dam)  : 

It  is  agreed  that  in  the  spring  of  1839,  the  ])hiintiff'S  com- 
menced building  a mill  on  said  lot  one  in  block  fifty-seven,  on 
section  sixteen,  and  also  a dam  across  the  Des  Plaines  River, 
connecting  said  lot  one  in  block  fifty-seven  on  the  east  bank 
of  said  River  with  the  division  line  between  lots  one  and  four 
in  block  fifty-six,  on  the  west  bank  of  said  River,  and  com- 
])leted  said  dam  and  saic  mill  so  as  to  use  the  same  in  the  fol- 


lowing-  ( )(*l()l)(‘i*  oi*  N()V(mhI)(‘i*.  Soon  tliereafler,  the  Commis- 
sioners of  the  Illinois  and  Miehi^an  Canal,  in  constructing 
said  (huial,  removed  the  west  end  of  said  dam  so  that  it 
l)('came  (‘onne(‘ted  with  the  east  hank  of  the  Canal,  which  bank 
encroached  u])on  the  natural  channel  of  the  river  atxnit  ten 
feet. 

Tlie  liead  and  fall  at  said  ])laintiffs’  dam,  used  by  tliem  in 
|)ro{)eHin^‘  their  mac'liinery,  is  six  feet,  leaving  a fall  on  said 
lots  one  and  two  in  block  fifty-seven  of  about  six  inches  more. 
In  the  year  1842,  the  plaintiffs  also  built  a grist  mill  on  said 
lot  two  in  block  fifty-seven,  also  added  to  the  saw  mill  a lath 
mill,  in  1843,  and  built  a dwelling  house  on  said  lot  one  block 
fifty-seven,  in  184b,  and  also  a machine  shop  on  said  lot  one 
in  block  fifty-seven,  in  1847.  Said  mills  and  buildings  have 
been  used  b}"  the  plaintiffs  for  the  use  and  ])ur])oses  for  which 
they  were  built,  from  the  time  they  were  built  as  aforesaid 
till  the  20th  day  of  April,  1848;  the  water  in  said  Eiver  being 
at  times  insufficient  for  all  said  machinery. 

(Des  Plaines  Water  Diverted  from  Eiver  and  Mill  to  Feed 
Canal)  : 

On  the  20th  of  April,  1848,  the  defendants  diverted,  or  caused 
to  be  diverted  into  the  Canal  for  the  use  of  said  Canal  from 
the  nalural  channel  of  the  Eiver,  the  whole  or  principal  part 
of  the  waters  of  said  River,  by  turning  the  same  from  the 
basin  made  in  said  Eiver  by  means  of  the  dam  on  section  nine, 
lieing  a Canal  section,  and  about  half  a mile  above  the  dam  of 
said  plaintiffs,  so  that  the  plaintiffs  are  v/holly  deprived  of  the 
use  of  the  water  at  their  said  mills,  and  have  not  since  been 
able  to  run  their  machinery.  From  the  time  of  putting  this 
portion  of  the  Canal  under  contract  in  1838,  and  up  to  the 
year  1843  there  had  been  no  change  in  the  original  plan  of 
supplying  the  Canal  vnth  water  from  Lake  Michigan  by  the 
deep  cut  as  originally  contemplated,  and  all  contracts  let  prev- 
ious to  1843,  and  all  the  arrangements  of  said  Canal  were 
made  notoriously  upon  the  plan  aforesaid,  and  with  a view  to 
supply  the  Canal  from  Lake  Michigan. 

(Agreed  Statement — Des  Plaines  Not  Navigable — An  Agreed 
State  of  Facts  Mdiich  Both  Parties  AYished.) 

It  is  also  admitted  that  the  Des  Plaines  Eiver  is  not  navig- 
able in  fact,  although  a portion  of  it  is  declared  to  be  so  by 
Act  of  the  Legislature. 

The  work  upon  the  Canal  commenced  being  suspended  in 
1841,  and  was  entirely  suspended  from  1842  to  1845. 

The  question  of  law  arising  from  this  state  of  facts  is, 
whether  the  plaintiffs  are  entitled  to  compensation  for  the 
injury  and  damages  they  have  sustained  in  consequence  of  the 


f;i)i 


(liv('i'si()n  ol*  the  waiei*  of  the  Dos  Dhiiiios  Kiv(‘i'  nforcisaid,  into 
tlu'  (\iiial  as  at’oresaid. 

And  it  is  stipulated  and  ai^reed,  that  \vhich(‘ver  way  tin; 
elu(ti»'e  deeides  said  (iiiestion,  either  party  may  have  thirty 
(tays  from  and  after  notiee  of  said  decision  to  take  an  appeal 
therefrom,  or  bring  a writ  of  error  to  the  Sui)reine  Dourt. 

If  the  said  decision  shall  be  made  in  favor  of  the  plaintiffs 
by  the  (hrcuit  (^oiirt,  and  the  defendants  do  not  appeal,  or 
bring  a wiat  of  error,  within  the  time  aforesaid,  or  if,  upon 
an  appeal  the  Supreme  Court  shall  decide  in  favor  of  the 
plaintiffs’  right  to  recover  their  damages  as  aforesaid,  then 
appraisers  shall  be  appointed  by  the  Judge  of  the  said  Circuit 
Court  to  appraise  the  damages  under  and  in  ]>ursuance  of 
the  9th  section  of  the  Act  of  March  2d,  1837,  each  party  re- 
serving the  right  to  make  objections  to  the  report  of  said  ap- 
praisers before  the  Circuit  Court,  and  to  appeal  from  the 
decision  or  order  of  the  Circuit  Court  upon  such  appraisal  as 
provided  for  in  the  said  Act.’ 

The  Circuit  Court  decided  that  the  appellees  were  entitled 
to  damages,  which  decision  is  now  assigned  for  error. 

It  appears  from  map  number  three,  that  lots  one  and  two 
in  block  fifty-seven  lie  immediately  upon  the  east  bank  of  the 
Des  Plaines  Elver,  and  that  lots  one  and  four  in  block  fifty- 
six  are  situated  upon  the  west  side  of  said  River,  from  which 
they  are  separated  by  a street.  Map  two  shows  that  the  whole 
of  lot  four,  and  nearly  all  of  lot  one  in  block  fifty-six,  as  well 
as  the  street  between  said  lots  and  the  River,  ami  several  feet 
of  the  River,  are  embraced  by  the  Canal  itself ; one  side  of  the 
River,  including  a portion  of  the  dam  of  the  appellees,  is  now 
occupied  by  the  Canal  itself,  and  u])on  the  opposite  side  lie 
lots  one  and  two  in  block  fiftv-seven. 


(Riparian  Owners’  Rights)  : 

The  general  rule,  that  rivers  not  navigable  belong  to  the 
owners  of  the  adjoining  land,  and  that,  when  the  o])])osite 
banks  belong  to  different  individuals,  each  holds  to  the  thread 
or  middle  of  the  stream,  is  not  disputed,  but  then  it  is  insisted 
that  the  ap])e!lees  have  no  such  right  in  this  case,  for  two 
reasons : 


(Canal  Reserved  Strip — ^Act  of  1822)  : 

It  is  first  contended,  that  by  an  Act  of  Congress,  a})])roved 
March  30,  1822,  the  State  of  Ulinois  was  authorized  to  survey 
and  mark  through  the  public  lands  of  the  llnited  States  the 
route  of  the  Canal  connecting  the  Illinois  River  with  the 
soutliern  bend  of  Lake  Michigan,  and  ninety  feet  on  each  side 
of  said  Canal  was  forever  reserved  from  any  sale  to  l)e  made 
by  the  United  States,  and  vested  in  said  State  for  a ('anal ; 
wherefore,  it  is  vsaid  that  the  api)ellees  am  deprived  of  any 


wlii('li  tlioy  iniglit  otherwise  liave  to  any  water  or  land 
within  ninety  feet  of  said  (.^anal.  It  is  to  he  observed,  that  a 
(‘ertain  time  was  i)rovided  t)y  tlie  Act  of  Congress  within 
wlii(‘h  tile  State  was  to  commence  and  complete  said  Canal,  or, 
upon  failure  to  do  so,  it  was  declared  that  the  reservation  and 
i>-i-ant  made  by  said  Act  sliould  lie  void  and  of  none  effect. 
Whthont  stop])ini^  to  inquire  whether  the  right  of  way  secured 
])y  the  Act  of  Congress  was  forfeited,  so  as  to  revest  ipso 
facto  in  the  government,  upon  failure  of  the  State  to  com- 
mence and  complete  the  Canal  within  the  time  limited  by  the 
Act,  or  whether,  as  is  contended,  the  conditions  of  the  Act 
of  1822  were  waived,  and  the  time  for  commencing  and  com- 
pleting the  Canal  extended  by  an  Act  of  Congress  passed 
iNFarch  2,  1827,  it  will  be  sufficient  to  show  that  neither  of  said 
Acts  of  Congress  can  have  any  bearing  upon  the  rights  of  the 
appellees,  admitting  even  that  they  are  of  the  character,  and 
contain  all  that  is  contended  for  by  the  appellants. 

(School  Section  16  No  Part  of  Canal  Lands)  : 

The  lots  of  the  appellees  are  situate  on  section  sixteen, 
which  was  granted  to  the  State  for  the  use  of  schools^  jorior  to 
the  passage  of  the  Act  of  1822.  It  was  not,  therefore,  public 
land  at  the  passage  of  the  Act,  and  consequently  no  part  of 
it  could  at  that  time  have  been  reserved  from  sale  by  the 
Lmited  States. 

The  various  Acts  of  the  Legislature  of  Illinois,  reserving 
a right  of  way  for  the  Canal,  and  authorizing  the  Canal  Com- 
missioners to  enter  upon  and  use  any  lands,  water,  or  mater- 
ials necessary  in  the  construction,  have  all  been  examined,  but 
are  not  referred  to  in  detail,  because  all  of  said  Acts,  passed 
prior  to  the  sale  of  section  sixteen,  had  reference  to  canal 
lands,  and  whenever  any  other  lands,  water,  or  materials  than 
those  appropriated  to  the  Canal  have  been  authorized  to  be 
taken,  it  has  only  been  upon  making  compensation. 

(Meander  Notes — Absence  of  Line  From  Plat) : 

It  is  next  insisted  that  the  United  States,  in  granting  the 
school  section  to  the  State,  did  not  include  in  the  grant  the  bed 
of  the  stream  running  through  it,  but  that  said  stream,  the  Des 
Plaines  Eiver,  was  meandered  through  said  section,  and  a 
plat  thereof  returned  to  the  Surveyor  GeneraPs  Office,  show- 
ing that  the  Eiver  was  not  included  in  the  survey;  and  while 
the  appellants  admit  that  a grant  of  land  bounded  by  a stream 
not  navigable,  passes  the  property  through  the  thread  of  the 
stream,  yet  it  is  insisted  that  the  owner  has  the  right  to  re- 
strict his  grant  either  to  the  edge  of  the  water,  or  to  high  or 
low  water  mark.  Admit  that  the  owner  may  so  restrict  his 
grant,  of  which  there  can  be  no  question,  when  the  intention 
is  clear  and  manifest,  and  still  the  admission  cannot  avail  the 


appolljinis,  b(H‘{Uiso  iliere  is  nothing  in  the  record  to  show  that 
the  United  States  intended  to  limit  tlieir  grant  so  as  to  ex- 
ehide  the  River.  Neither  tlie  plats  filed  in  tlie  Land  or  Siir- 
veyor  (leneral’s  Oftice,  sliow  any  lines  marking  the  courses  and 
distances  along  the  margin  of  tlie  Liver,  as  a hoiindary  of  the 
adjoining  land. 

(The  Des  Plaines  a Meandered  Stream) : 

The  agreed  ease  states  as  follows:  ‘It  is  admitted  that  said 
Des  Plaines  River  is  meandered  tlirougli  the  entire  length 
of  said  sections,  as  appears  by  the  minutes  of  said  survey, 
in  said  Surveyor’s  Office,  a copy  of  which  minutes  is  also 
attached,  marked  2,  and  delineated  on  said  maps.’  We  do  not 
understand  this  language  to  imply  that  the  meandered  line 
was  marked  upon  the  maps  in  the  Land  and  Surveyor’s  Offices, 
but  that  it  would  appear  by  the  minutes,  not  maps,  that  said 
River  was  meandered,  a copy  of  which  minutes  is  also  attached 
and  delineated  on  said  maps,  not  as  they  appear  in  said  Offices, 
but  as  they  are  made  exhibits,  which,  however,  is  an  error  in 
point  of  fact,  as  there  are  no  distinctions  of  said  meandered 
lines  upon  the  maps.  As  there  was,  therefore,  no  marked  line 
upon  the  plat  by  which  the  grant  was  made,  defining  and  limit- 
ing the  land  granted  to  the  margin  of  the  stream,  the  whole 
argument  founded  upon  such  a supposed  state  of  facts  fails. 

That  a meandered  line,  which  is  run  for  the  purpose  of  as- 
certaining the  quantity  of  land  in  the  fraction,  is  not  a liound- 
ary,  has  been  settled  by  a former  decision  of  this  Court,  in 
the  case  of  Middleton  v.  Priichard,  3 Scam.  510. 

In  that  case  the  Court  says:  ‘It  appears  the  Surveyor  of 
the  Government  traced  the  courses  and  distances  along  the 
margin  of  the  slough,  next  the  main  land,  in  order  to  estimate 
the  quantity  of  land  in  the  fraction,  and  which  estimate  did 
not  include  the  Iocais  in  quo.  But  the  plats  in  the  Land  Office, 
and  Surveyor  General’s  Office,  have  no  line  marking  their 
courses  and  distances  as  a boundary.’  Neither  have  the  plats 
referred  to  in  this  case. 

No  other  points  have  been  made  for  a reversal  of  the  judg- 
ment of  the  Chrcuit  Court,  except  the  suggestion  that  there 
is  nothing  in  the  record  to  show  that  lots  one  and  two  in  block 
fifty-seven  border  ux)on  the  Rivei*.  This  is  a misapprehension. 
Map  No.  3 shows  that  said  lots  do  lie  upon  the  River,  and  the 
right  of  the  axipellees  to  the  water  of  the  River  opposite  their 
lots  to  the  middle  of  the  stream  being  established,  it  follows 
that  they  are  entitled  to  damages  for  a diversion  of  the  water 
from  its  natural  flow  along  the  bed  of  said  stream. 

What  the  amount  of  their  damages  will  be,  or  whether,  hav- 
ing a right  to  only  one-half  the  stream,  the  appellees  can  so 
use  it,  the  appellants  being  entitled  to  the  other  half,  as  to 
make  it  available  for  running  the  machinery  which  they  have 


])iit  up  on  siaid  lots  one  and  two,  ar-e  (|nestioiis  not  now  l)efore 
ns.  Tliey  would  l)e  entitled  to  at  least  nominal  damages,  even 
if  no  water  power  eonld  he  obtained  from  tlie  River  upon  said 
lots. 

Idle  judgment  of  the  Cinniit  (^onrt  is  affirmed  with  costs. 

Judgment  Affirmed.’^ 

Upon  this  it  is  to  he  oliserved  that  the  case  was  submitted  ni)on 
an  agreed  statement  of  facts,  or  stijiulatioh.  Tliis  stijmlation  con- 
stitutes the  entire  evidence  in  tlie  case. 

In  18.‘U  })art  of  tlie  School  Section  adjoining  the  river  was  sold 
hy  the  school  authorities  to  ])urchaseTS,  from  whom  the  plaintiffs 
ac(]uired  title.  The  plaintiffs  proceeded  to  build  a dam  and  mill 
in  18d9,  and  an  additional  mill  in  1842,  which  were  operated  by 
] lower  from  the  dam. 

in  1836  the  construction  of  the  canal  was  begun.  The  work  on 
the  portion  of  the  canal  adjoining  this  dam  was  begun  in  1840, 
and  the  Dam  No.  1 was  begun  in  the  spring  and  finished  in  the  fall 
of  1841,  after  the  plaintiffs’  mill  was  erected. 

In  1843  the  canal,  with  all  its  ap})urtenances,  including  the  bed 
of  the  river  in  Canal  Sections,  and  all  of  the  canal  lands,  were 
conveyed  to  trustees  by  mortgage,  embodied  in  the  Act  of  Febru- 
ary 21,  entitled:  “An  Act  to  provide  for  the  completion  of  the 
Illinois  and  Alichigan  Canal,  and  for  the  payment  of  the  canal 
debt.”  (L.  1843,  p.  54;  Canal  Comp.,  p.  76.)  These  Canal  Trus- 
tees were  mortgagees.  It  had  been  originally  planned  to  build  the 
canal  on  the  deep  cut  plan,  getting  the  water  by  gravity  from  Lake 
Afichigan. 

It  had  been  decided  that  this  would  be  too  expensive,  and  that 
the  shallow  cut  should  be  substituted  and  water  should  be  obtained 
from  the  Des  Plaines,  the  Calumet,  the  Kankakee,  the  Du  Page  and 
the  Fox  Rivers. 

The  Canal  Trustees  desired  to  take  and  use  the  waters  of  the 
Des  Plaines  Eiver  to  feed  the  canal,  which  would  thereby  save  them 
the  greater  expense  of  getting  the  water  from  Lake  Alichigan. 
The  plaintiffs,  the  Havens,  desired  to  take  and  use  the  waters  of 
the  Des  Plaines  Eiver  to  drive  their  mill. 

There  was  one  point  u])on  which  the  Canal  Trustees, — mortga- 
gees of  the  property  of  the  State,  and  the  plaintiffs, — running  the 


wnior-powiM*  mill, — \v(‘r(‘  in  agi’CHmuml;  lliat  was  lliat  IIk^  riven* 
ought  not  to  1)0  ooiiisidorod  uavig'a})io.  If  it  was,  that  woiihl  inten*- 
foro  witli  tho  plaiutitTs  in  using  tho  rivou  l)y  thoir  dam  for  water 
power. 

if  it  was  navigable,  it  would  interfere  with  tho  Canal  Trnst(*es — 
mortgageos — in  making  tlie  sliallow  eiit  and  emptying  tlie  Dos 
Plaines  Pivei*  into  the  canal.  The  two  ])arties,  therefore,  while 
they  disputed  as  to  who  had  the  right  to  take  and  appro])riate 
the  waters  of  the  river,  agreed  in  this:  that  the  river  was  not 
navigable.  They  tiled  a stipulation  to  that  effect,  and  the  case  was 
submitted  on  the  stipulation. 

The  Canal  Trustees  proceeded  to  put  a new  dam  across  the 
river,  known  as  ‘‘Dam  No.  1,”  and  “On  the  20th  of  April,  1848, 
the  defendants  diverted,  or  caused  to  be  diverted  into  the  canal 
* * the  tvhole,  or  the  principal  part  of  the  irate rs  of  said 

river.”  The  question  debated  was  as  to  whether  the  plaintiffs,  the 
Havens,  were  entitled  to  compensation  for  the  injury  and  damage 
to  their  water  power  by  this  diversion  of  the  Des  Plaines  Diver 
into  the  canal. 

The  Court  decided  that  they  were. 

It  was  further  decided  that  there  was  no  Ninety- foot  Strii)  in 
diis  Section  16,  which  had  been  granted  to  the  State  for  school  ])in*- 
poses  by  the  enabling  Act  of  Congress,  April  18,  1818,  and  accepted 
by  the  State  by  tlie  ordinance  ado])ted  by  the  Constitutional  Con- 
vention of  the  State,  August  26,  1818. 

The  Congressional  grant  of  the  Ninety-foot  Strip  foi*  the  canal 
was  not  made  until  1822;  this  School  Section  had  ceased  to  be  })ub- 
lic  lands  of  the  United  States  Government  in  1818;  Section  16  was, 
therefore,  neither  canal  land,  nor  was  it  public  land,  through  whidi 
the  canal  ran. 

The  court  also  applied  the  general  rule  jireviously  established 
in  Middleton  v.  Pritchard,  d Scam.,  510,  to  these  lands  in  Section 
16;  and  decided  that  the  ])laintiifs,  as  riparian  owners  along  the 
river,  owned  to  the  center  of  the  stream. 

Canal  Trustees  v.  Haven,  11  111.,  554,  was  the  same  case  on  fnr- 
iher  appeal.  In  this  case,  the  Court  said: 

“It  was  manifest  in  this  case  from  the  report  of  the  up- 


l)rais(‘i‘s,  that  in  assessing  tlie  daniages,  they  considered  the 
appellee's  the  owners  of  ])oth  shores  and  the  entii'e  bed  of  the 
streain.” 

TJiis  was  found  to  be  erroneous : 

'Mirstead  of  owning  the  entire  bed  of  the  river,  and  having 
an  exclusive  right  to  the  use  of  the  whole  of  the  water,  they 
are  the  proprietors  of  only  half  the  bed  of  the  stream,  and 
entitled  to  use  but  half  of  the  water  naturally  flowing  along 
the  channel.  The  erection  of  the  dam  across  the  stream,  by 
means  of  which  the  head  of  water  was  increased,  and  the  value 
of  the  site  and  improvements  enhanced,  ivas  unauthorized. 
The  assessment  of  damages  for  the  deprivation  of  the  water, 
musit,  therefore,  be  made  with  reference  to  the  actual  .value 
of  the  use  of  one  half  of  the  water  naturally  flowing  along  the 
channel,  without  taking  into  consideration  any  artificial  ob- 
structions extending  across  the  stream.” 

We  respectfully  submit: 

(1)  That  the  stipulation  and  agreed  case  by  the  Canal  Trustees, 
— mortgagees  of  the  State  property — that  the  river  was  not  navig- 
able was  beyond  their  power  to  make.  The  Canal  Trustees  were 
statutory  officers.  Statutes  delegating  powers  to  public  officers 
are  strictly  construed,  and  all  parties  interested  must  look  to  the 
statute  for  the  grant  of  power.  Acts  of  these  officers  not  within 
the  terms  of  the  statutes  are  void. 

1.  S M.  Canal  v.  Calhoun,  1 Scam.,  521. 

Diederich  v.  Rose,  228  111.,  610. 

State  of  Illinois  v.  Delafield,  8 Paige’s  Chancery,  528. 

See  Division  One  of  this  brief.  Part  II. 

But  the  Flowage  Contract  is  beyond  the  power  of  the  Canal 
Commissioners,  and  the  cases  cited  there. 

There  is  nothing  in  the  Act  creating  the  Canal  Trustees  that 
vested  in  them  the  power  to  stipulate  and  make  an  agreed  case  that 
the  Des  Plaines  River  was  not  navigable. 

(2)  Even  if  the  Canal  Trustees  had  the  power  to  make  that 
stipulation  and  agreed  case  for  the  purpose  of  that  suit,  it  would 
not  be  binding  in  any  other  suit. 

A consent  decree  and  an  agreed  statement  of  facts  for  the  pur- 
poses of  submitting  a particular  controversy  to  adjudication,  while 
binding  upon  the  parties  in  any  future  proceeding  arising  between 


tli(‘  SMMK'  i);n'ti(‘s,  is  in  i\  suhs(Miu(‘ii'i  pi-occKsliii^'  h(;lw(H‘ri 

(ni(‘  of  llio'so  |)<n*1i(\s  and  a stranger. 

bUiuig  (7  al  v.  Hcott,  2 Johnson  (N.  V.)  *157,  })(;r  Kent, 

C.  J. 

kSuoIi  a stipulation,  while  admissible  against  the  party  in  a sub- 
se(]uent  trial  or  case  between  the  same  parties,  is  not  })inding  even 
there,  nmeli  less  in  a proceeding  against  a stranger. 

Luther  v.  Clay,  100  Ga.,  236 ; 39  L.  E.  A.,  95. 

In  Canal  Trustees  v.  Haven  the  agreed  state  of  facts  w^'as  made 
by  a trustee.  Such  agreed  statements  by  trustees  are  not  binding 
upon  the  cestui. 

Bragg  v.  Cedes,  93  111.,  39. 

Thomas  v.  Boman,  24  111.,  426. 

We  have  shown  elsewhere  that  this  court  and  other  courts  have 
repeatedly  held  that  the  public  right  in  a navigable  stream  is  non- 
alienable. 

(See  this  brief.  Division  Three.) 

An  agreement  by  any  officer  of  the  state  to  abrogate  the  navig- 
able character  of  a stream  is  a violation  of  this  rule  or  law.  It 
would  be  an  attempt  to  alienate  and  admit  away  that  which  is  non- 
alienable.  The  stipulation  that  the  river  was  non-navigable  is  nuga 
tory. 

(See  cases  cited  under  head  of  ^‘Public  Eight  in  a Navig- 
able Stream  is  Non-alienable.”) 

The  Avhole  people  are  the  cestui,  and  their  right  can  not  l)e  so 
given  away. 

For  the  same  reasons,  the  evidence  of  numerous  contracts  and 
leases  by  former  Canal  Commissioners  letting  out  or  giving  away 
rights  in  the  Tow-path  and  Ninety-foot  Strip  inconsistent  with 
the  integrity  of  the  canal,  were  incompetent,  and  without  right, 
and  the  admission  thereof  as  a supposed  estoppel  against  the 
State  was  erroneous. 

The  repetition  of  this  wrong,  no  matter  to  what  extent  it  was 
carried,  could  not  develop  into  a right  adverse  to  the  State. 


Tills  Court  iiuiy  rightfully  a(l()])t  the  same  rule  in  this  stipulation, 
whi(‘h  it  adopted  in  Happd  v.  Brethauer,  70  111.,  IGG.  There  the 
jiai'ties  stipulated  that  a 'Statute  “had  not  })een  passed  in  conform- 
ity with  the  i'e(juirements  of  tlie  ('onstitution.  No  other  jiroof  was 
submitted  as  to  the  admitted  fact.”  This  court  said: 

“The  ('ourt  cannot  act  upon  sucli  evidence  in  determining 
the  constitutioniality  of  a law.  If  sucli  a rule  was  adopted,  the 
entire  statute  might  he  abrogated  by  agreement.” 

The  same  rule  was  laid  down  liy  the  Supreme  Court  of  Michigan 
in  Attorney  General  v.  Rice,  04  Midi.,  pp.  385,  391,  and  by  the 
Court  of  Ohio,  in  Miller  v.  State,  3 Ohio  St.,  476. 

The  right  of  tlie  State  in  a navigable  stream  is  itself  a jus  pub- 
lic um  and  an  inherent  attribute  of  sovereignty. 

Magna  Cliarta,  Section  33. 

E.  Hartford  v.  Hartford  Bridge  Co.,  10  How.,  *534. 

0.  & M.  R.  Co.  V.  McClelland,  25  111.,  140. 

Arnold  v.  Mnndy,  1 Hals.,  1-76. 

This  jus  publicum  is  an  inherent  attribute  of  sovereignty  and  its 
non-alienability  is  essential  to  self-preservation  on  the  part  of  the 
State.  If  the  State  can  bargain  away  this  one  of  its  attributes 
of  sovereignty,  then  it  can  bargain  them  all  away,  and  there  will 
be  no  sovereign  left.  If  the  Slate  can  bargain  away,  or  admit  out 
of  existence  the  public  right  in  a navigable  stream,  then  every 
other  sovereign  prerogative,  including  the  right  of  existence,  may 
be  sold  into  slavery,  and  the  State  may  commit  felo  de  se. 

S.  STATUTES  DECLARIXG  STREAMS  NAVIGABLE  ARE  COMPETENT  TO  DE- 
FINE THE  STANDARD  OP  NAVIGABILITY,  AND  PRIM  A FACIE,  ESTABLISH 
THE  PUBLIC  CHARACTER  OF  .THE  STREAM. 

The  first  case  in  the  State  on  the  subject  is : 

1835.  Clark  v.  Lake,  2 111.  (I  Scam.),  229.  Trespass  on  the 
case.  * * * plaintift*  declared  against  the  defendant  for 

erecting  a dam  across  the  Sangamon  River, — which  stream  had 
been  declared  a public  highway  by  a statute  of  this  State — whereby 
the  plaintiff  had  been  obstructed  in  the  navigation  thereof  while 
jiroceeding  down  the  river  with  a boat  load  of  corn  and  had  there- 
by lost  his  said  boat  and  contents.  Verdict  and  judgment  for  the 
defendant. 


1I(‘1(1  tlint  the  (‘oiiri  below  luul  erroneously  adiniitcMl,  on  boludf 
of  the  (iefensc,  evidence  of  another  will  dam  loiver  down. 

dlie  statute  of  the  State  settled  tlie  (luestioii  of  uavii^ahility ; 
and  the  i)reseuee  of  other  dams  (or  ohstruetions)  was  no  justific'u- 
tion,  initig’ation  or  defense. 

The  Legislature  may  pass  a declaratory  Act,  which,  though  in- 
operative in  the  past,  may  act  in  future. 

P.  M.  Gen.  v.  EarUj,  12  Wheat.,  135,  148,  Per  Marshall, 

C.  J. 

(So  an  Act  which  assumed  to  confer  on  the  District  Court 
jurisdiction  concurrent  with  the  Circuit  Court  (although  the 
Circuit  Court  did  not  by  law  have  such  jurisdiction  before), 
thereby  invested  the  Circuit  Court  with  jurisdiction.) 

‘‘This  law  expresses  the  sense  of  the  Legislature  on  the  ex- 
isting law,  as  plainly  as  a declaratory  Act,  and  expresses  it  in 
terms  capable  of  conferring  the  jurisdiction.”  Id. 

Declaratory  Statute, 

Duty  of  Judiciary: 

“The  judicial  department  must  determine  the  constructio]! 
of  all  laws  involved  in  cases  before  them,  and  accoixling  to 
their  own  views.  (Curtis’s  Dig.,  p.  104.) 

“But  it  is  also  the  duty  of  the  judiciary  to  give  to  the  acts 
of  the  Legislature  their  mtended  practical  operation,  as  far  as 
it  is  possible.” 

Bassett  v.  U.  S.,  2 Nott  & McCord  ((hurt  of  (^laims),  448. 

Argument  for  i)laintift  in  error: 

Declaratory  Act, — effect  of : 

“The  Act  of  22nd  of  March,  1818,  7 Sin.  L.  110,  making  Ben- 
nett Branch  a x^dilic  highway,  makes  it  subject  to  the  Mill  and 
Dam  Act  of  March  28,  1808,  4 S.  M.  L.-20,  which  authoilzes 
riparian  owners  to  erect  mill-dams,  etc.,  ])rovided  that  they 
do  not  obstruct  the  navigation,  etc.” 

{Coovert  v.  O’Connor,  8 Wattes.,  47(1.) 

The  Court  (Strong,  d.)  said:  “Bennett’s  Branch  of  the 
Sinnemahoning”  is  a ])u])lic  highway,  declared  such  liy  law. 
The  defendants  therefore  had  no  right  to  interfere  with  the 
natural  flow  of  the  water,  except  so  far  as  they  were  licensed 
by  the  Mill-Dam  Act  of  March  28,  1808. 

They  were  not  authorized  to  build  dams  for  any  other  pui*- 
})oses  than  those  described  in  that  Act.  A dam  to  provide  a 


“s))lasir’  flood  is  illog'al,  and  of  ('oiirse  its  eoiisefiueiioes  are 
illegal. 

(Gives  tlie  Act  tlie  effect  of  preventing  tlie  owners  from  acquir- 
ing tlie  right  of  damming  the  stream.) 

When  the  legislature  in  the  preamble  to  a resolution  ratifying 
a free  holder’s  charter  for  a city,  recited  that  such  city  contained 
a population  of  more  than  10,000,  such  resolution,  with  the  charter 
it  establishes,  being  a law  of  the  State,  is  conclusive  as  to  the  fact 
recited  in  the  preamble. 

Ex  parte  Fedderivitz,  62  Pac.  (Cah,  1900)  935. 

A statute  declaring  a stream  navigable  dedicates  it  as  a liigh- 
ivay. 

‘‘The  Commonwealth  having  dominion  over  navigable 
streams,  and  having  a consequent  right  to  dispose  of  them  at 
Ijleasure,  declared  the  Swatara  (Creek)  a public  highway  in 
1771;  and  thus  it  ivas  devoted  to  public  used’ 

That  such  a statute  is  a declaration  of  public  uses,  see  also : 

State  V.  Pool,  75  N.  Car.,  597,  601-2. 

Barclay  Co.  v.  Ingham,  36  Pa.  St.,  194. 

In  re  Horican  Drainage  Dist.,  Appeal  of  Rottenberger  et 
al.,  (Wis.)  (April  17,  1908) ; 116  N.  W.  Eep.,  12. 

New  York — 1813.  Shaw  v.  Craivford,  10  Johnson  (N.  Y.),  235- 
*237. 

‘‘Per  Curiam.  According  to  the  authority  of  Sir  Matthew 
H.ale,  and  which  was  cited  in  Palmer  v.  Midligan,  (3  Caines’ 
Eei3.  315,  319),  a river  not  navigable  in  the  common  law  sense 
of  the  term,  and  though  the  fee  of  it  belongs  to  the  owners  of 
the  adjoining  banks,  may  still  be  liable  to  the  public  uses  of 
rafting  and  boat  navigation,  as  a public  highway.  The  Bat- 
tenkill  had  been  used  for  rafting  for  twenty-six  years  and  up- 
wards. This  was  fully  joroved  upon  the  trial,  and  no  right 
was  set  up  in  opposition  to  the  right  founded  on  this  usage. 
A usage  of  this  length  of  time  will,  of  itself,  grow  into  a pub- 
lic right,  and  especially,  where  the  public  interest,  or  public 
convenience,  is  essentially  promoted.  * * * 

“Though  the  Battenhill  be  omitted  from  the  statute  declar- 
ing certain  rivers  and  streams  public  highways,  this  omission 
cannot  prejudice  or  impair  the  right,  which  the  public  may 
have  acquired  by  usage.  The  object  of  the  Act  was  not  to  re- 
lease any  public  right,  but  to  ascertain  and  declare  it,  in  cases 
where  it  otherwise  might  have  been  doubtful,  or  liable  to  dis- 


701 


piito  and  inlerriiption.  Wlion  a T’ivoi*  is  so  fai*  navigable*  as  to 
1)0  of  piihlio  iiso  in  tlio  transpoiiation  of  pro})orty,  tln^  pidilic! 
('laiin  io  snoli  navigation  ouglit  to  bo  liboi'ally  snpporiod.  'Tlio 
froo  nso  of  wators  wliiob  can  be  made  subservient  to  eornnieroe, 
has,  by  the  general  sense  of  mankind,  ])een  (*onsidei*ed  as  a 
tiling  of  oommon  riglit.  Individuals  wlio  occupy  the  adjoining 
banks  may  nse  the  waters  for  their  own  emolnment,  so  far 
only  as  it  can  be  done  without  any  material  interriijytion  of 
the  public  nse.  Every  owmer  of  a mill-dam  on  a stream  which 
fish  from  the  ocean  annually  visit,  is  bound  to  provide  a con- 
venient i)assage-w^ay  for  the  fish  to  ascend.  This  point  was 
lately  decided  by  the  Supreme  Court  of  Massachusetts,  in  tlie 
case  of  Stoughton  v.  Baker.  (4  Tyng’s  Mass.,  T.  E.  522.)  The 
civil  laiv  contains  ample  and  precise  regulations  on  the  whole 
of  this  subject.  Every  impediment  to  the  natural  course  and 
the  natural  nse  of  rivers  and  streams,  wdiich  essentially  con- 
tribute to  the  public  benefit,  becomes  a public  nuisance.” 

New  York — People  v.  Gutchess,  48  Barb.  (N.  Y.),  656. 

^‘AYhere  the  Legislature  has  asserted  for  the  State  the  right 
to  control  a particular  river,  and  has  expressly  declared  it  to 
be  a public  highwmy,  by  a public  act,  the  State  has  the  un- 
questionable right  to  control  the  use  of  the  river,  and  to  pre- 
vent the  erection  of  any  bridges  or  dams,  or  other  works, 
which  will  obstruct  tlie  free  use  of  the  same  as  a public  high- 
way. 

‘‘Whatever  rights  the  public  have  in  such  a river,  the  au- 
thorities of  the  State  are  bound  to  protect,  and  a suit  for  that 
purpose  is  properly  instituted  by  the  Attorney  General,  in  the 
name  of  the  people. 

“The  public  right  in  a river,  upon  the  assunqition  that  it  is 
not  navigable,  in  fact,  is  to  be  regarded  simply  as  that  of  pass- 
age, as  in  a highway. 

“If  the  State  owns  tlie  bed  of  a river,  or  if  it  be  a navigable 
river,  in  fact,  then  the  law  laid  down  in  The  People  v.  The 
Canal  Appraisers,  (33  N.  Y.  Eep.,  461)  and  The  Canal  Ap- 
praisers V.  The  People,  ex  rel.  Tibbetts,  (17  Wend.,  571),  ap- 
plies to  it,  and  no  one  can  lawfully  construct  a bridge  over  it, 
without  the  consent  of  the  Legislature. 

“The  State  government,  in  this  particular,  is  the  guardian 
of  the  rights  of  each  and  every  citizen,  wdiich  rights  consist 
in  an  absolute  and  unqualified  privilege,  without  let  or  hind- 
rance, at  all  times  freely  to  navigate  any  and  every  one  of  the 
streams  in  the  State,  that  is,  at  any  season  of  the  year,  oi*  at 
any  stage  of  water  therein,  capable  of  navigation;  and  ])articu- 
larly  so,  if  the  Legislature  has  by  special  act  declared  su(*h 
stream  a public  highway.” 


702 


''I'lii's  {U'tiori  was  broii^lit  to  rostrain  the  defendants,  styled  peti- 
tionei's,  from  proceeding  to  o])tain  an  order  of  the  court  to  relmild 
the  so-called  free  hi'idge  over  the  Seneca  liiver,  which  separates 
said  towns,  nnder  tlie  statute  referred  to  in  tlie  opinion  of  the 
(*onrt.  The  (V)urt  said  : 

“The  cainplaint  further  alleges,  tliat  tlie  Seneca  River  is 
about  thirty  miles  in  length,  and  is  of  an  average  width  of 
about  thirty-tive  rods,  and  of  an  average  depth  of  about  eleven 
feet,  and  has  navigable  communications  from  Lake  Ontario 
to  Schenectady,  and  runs  through  a thickly  settled  country  and 
near  a number  of  villages;  that  its  banks  are  lined  with  large 
(luantities  of  timber;  and  that  the  State  lias  expended  large 
sums  of  money,  from  time  to  time,  in  dredging  its  channel  and 
in  improving  its  navigability.  The  complaint  further  alleges, 
that  said  bridge,  if  constructed,  will  be  a nuisance  and  a pur- 
])resture,  in  fact  and  in  law,  as  well  as  a violation  of  the  Act  of 
the  Legislature  passed  April  2d,  1813,  declaring  said  river  to 
be  a public  highway,  and  making  it  a misdemeanor  to  obstruct 
it  by  any  erections  or  works  on  its  beds  or  its  banks;  and  it 
further  alleges,  that  said  bridge  will  necessarily  dam  up  and 
obstruct  the  navigation  of  said  river,  and  hinder  and  delay,  if 
not  entirely  obstruct,  the  plaintiffs  in  the  exercise  of  their 
rights  to  freely  navigate  said  river,  and  would  also  necessarily 
amount  to  an  usurpation  of  a franchise  which  can  only  be 
conferred  by  the  Legislature. 

“The  defendant’s  annex  to  their  answer  the  report  of  C. 
C.  Dwight,  Esq.,  a referee  in  proceedings  in  this  court  relative 
to  said  bridge,  under  the  iVct,  chapter  639,  passed  April  16, 
1857,  in  which  said  referee  finds  and  reports  that  said  river 
was  declared  a public  highivay  by  Act  of  the  Legislature  in 
1813,  rt nr/  in  the  early  settlement  of  the  country  teas  occasion- 
ally navigated  in  seasons  of  high  ivater  by  rafts  and  boats  of 
small  size;  but  that  it  had  not  been  navigated  for  many  years, 
and  is  not  now  a navigable  stream.  This  report,  I presume, 
states  the  truth  substantially  in  respect  to  this  river,  and, 
connected  with  the  defendant’s  answer,  substantially  denies 
and  disproves  the  equity  of  the  complaint. 

“It  appears  from  this  report  that  there  are  already  erected 
and  in  use  twelve  bridges  across  said  river,  at  an  average  dis- 
tance of  about  three  miles  from  each  other,  throughout  its 
entire  length.  I cannot  see,  therefore,  why  or  how  the  bridge 
which  the  defendants  propose  to  construct  across  said  river, 
will  particularly  add  to  the  obstruction  already  existing  to  its 
namgation. 

“I^pon  these  facts,  if  this  report  was  properly  l)efore  me 
and  had  any  judicial  force  in  this  proceeding,  I should  be  in- 


70:5 


(‘linod  to  deny  the  injunetion  entirely,  upon'  the  ground  that 
the  equity  ot*  the  })ill  was  denied;  hut  I think  I ('annot  give 
any  foree  to  this  report,  as  against  the  state,  and  I (-annot 
overlook  the  kacd  that  the  Legislature  has  asserted  for  the 
State  the  right  to  control  said  river,  and  has  expressly  de- 
clared it  to  he  a public  highivay,  by  a pii])lie  aot,  and  tliat  tlie 
bridges  aforesaid,  ereeted  over  said  river,  liave  been  so  erected 
upon  leave  or  license  from  the  State. 

“The  State  has,  therefore,  the  unquestvonahle  right  to  con- 
trol the  use  of  the  river  and  prevent  the  erection  or  creation 
of  any  bridges  or  dams,  or  other  ivorks  ivhich  ivill  ob- 
struct the  free  use  of  the  same  as  a public  highivay. 

“Whatever  rights  the  public  have  in  this  river,  the  authori- 
ties of  the  State  are  bound  to  protect,  and,  this  suit  is  properly 
instituted  for  that  purpose.  But  the  public  right  in  this  river, 
upon  the  assumption  that  it  is  not  navigable  in  fact,  is  to  be 
regarded  simply  as  that  of  passage,  as  in  a highway,  as  was 
said  by  this  court  in  Ex  parte  Jennings  (8  Cowen,  537),  in 
reference  to  Chittenango  Eiver,  Bs  one  of  passage,  and  noth- 
ing more,  as  in  a common  highway.  It  is  a mere  easement, 
and  the  proprietor  of  the  land  on  the  banks  has  a right  to  use 
the  land  and  water  of  the  river  in  any  way  not  inconsistent 
with  the  easement.  If  he  makes  any  erection  rendering  the 
passage  of  boats  inconvenient  or  unsafe,  he  is  guilty  of  a 
nuisance,  and  this  is  the  only  restriction  which  the  law  im- 
poses on  him.’ 

^‘If,  therefore,  the  State  owns  the  bed  of  the  Seneca  Biver, 
as  is  asserted  in  the  complaint  in  this  case,  the  law  of  those 
cases  applies  to  it,  and  no  one  can  lawfully  couistruct  a l)ridge 
over  it  without  the  consent  of  the  Legislature.  But  if  the 
right  of  the  State  in  this  river,  oi*  its  right  to  control  it,  depend 
entirely  upon  the  simple  assertion  by  the  Legislature  that  it 
is  a public  highway,  then  the  defendants,  I think,  are  entitled 
to  lay  out  a highway  and  build  a bridge  across  the  said  river, 
unless  they  proposed  to  take  toll,  Ayhicli  would  be  a franchise 
that  must  be  granted  by  the  Legislature.  It  is  not  alleged  that 
this  is  proposed  or  intended.  If  it  he  a navigable  river  in  fact, 
they  could  not  lawfully  build  such  ])ridge  without  leave  of  the 
Legislature,  or  if  the  State  owns  the  bed.  This  is  nsserted 
in  the  case  of  The  Fort  Plain  Bridge  Co.  v.  Smith  (30  N.  Y. 
Rep.,  63),  and  is  undoul)tedly  the  law  ot  this  state.” 

(48  Barb.,  pp.  664-5-6-7-8.) 

North  Carolina — 1856.  State  v.  Dibble,  49  N.  G.,  107. 

‘‘It  is  now  well  settled  that  the  rule  ado))ted  in  Ihigland  l)y 
which  navigable  waters  are  distinguished  from  others,  to  wit, 
the  ebb  and  flow  of  the  tides,  is  entirely  inapplicable  to  our 


sihiation,  and,  tliereforo,  lias  been,  abrogated.  Wilson  v. 
Forhes,  2 Dev.  J^ej).,  bO;  Collins  v.  Bejihury,  ll  Jre.  liej).,  277; 
S.  C.  f)  Ire.  liop.,  118;  Fagan  v.  Armstead,  1 1 Fre.  Rep.,  423.  No 
|)r(H‘ise  (‘riterioii  for  deterniiriing  the  (piestioir  in  this  State  has, 
as  yet,  been  estalilislied  by  onr  eoiirts.  In  Wilson  v.  Forbes, 
llnNDEasoN,  d.,  said,  ‘ Wliat  general  rule  shall  be  adopted,  this 
ease  does  not  require  me  to  determine,  were  I competent  to  it. 
IRit  I tliink  it  must  be  admitted  that  a creek  or  river,  such  as 
this  a})})ears  to  be,  wide  and  deep  enough  for  sea-vessels  to 
navigate,  and  without  any  obstruction  to  tliis  navigation  from 
its  mouth  to  the  ocean,  and  the  limit  of  whose  waters  is  not 
higher,  nor  as  high,  as  the  flowing  of  the  tides  upon  our  sea- 
(‘oasts,  is  a navigable  stream  witliin  the  general  rule.’  Tn  Col- 
lins V.  Benhury,  as  reported  in  brd  Tre.,  Eufftn^  (t  J.^  said, 
‘Any  waters  which  are  sufficient  in  fact  to  afford  a common 
l)assage  for  all  people  in  sea-vessels,  are  to  be  taken  as  navig- 
able.’ We  are  not  aware  that  any  more  precise  rule  has  been 
elsewhere  laid  down. 

“Whether  the  River  Neuse,  between  the  port  of  Newbern, 
(h*aven  County,  and  the  town  of  Smith  field,  in  Johnston  Coun- 
ty, which  is  stated  to  be  navigable,  for  eight  months  in  the 
year,  for  flat-boats  and  small  steani-boats,  comes  within  the 
terms  of  this  rule;  or  whether  the  rule  can  be  extended  by 
analogy  to  embrace  it,  we  need  not  inquire.  The  Legislature 
has  the  undoubted  right  to  declare  it  to  be  a navigable  stream, 
and,  we  think,  that  has  been  done,  either  directly  or  inferen- 
tially,  by  the  following  Acts:  First,  the  Act  of  1812,  (ch.  849 
of  the  Rev.  of  1820),  entitled  an  Act  for  the  opening  and  im- 
l)roving  the  navigation  of  the  Neuse  River,  created  a company 
for  that  purpose,  and,  in  the  4th  section,  gave  it  power  ‘to 
contract  for  the  opening  and  improving,  or  otherwise  cause  to 
be  opened  and  improved,  the  navigation  of  Neuse  River,  from 
the  present  head  of  boat  navigation  therein  below  Lockhart’s 
Falls,  westward  to  Crabtree  Falls,’  etc.  Secondly:  By  the 
5th  sec.  of  103rd  chapter  of  the  Revised  Statutes,  taken  from 
the  Act  of  1823  (ch.  1197  of  Taylor’s  Rev.),  the  justices  of  the 
several  County  courts  of  Johnston,  LVayne,  Lenoir  and  Craven, 
were  authorized  to  lay  off  the  inhabitants  on  both  sides  of  the 
River  Neuse,  above  Spring  Garden,  into  convenient  districts, 
with  the  view  of  removing  ‘all  brush  and  other  obstruction 
to  the  navigation’  of  that  river. 

“Thirdly:  The  Act  of  1848,  ch.  82,  sec.  51,  appropriated  forty 
thoiLsand  dollars  ‘for  the  purpose  of  cleaning  out  and  improv- 
ing the  navigation  of  the  River  Neuse,  between  the  town  of 
Newbern  and  the  town  of  Smithfield.’ 

“Fourthly  and  lastly:  The  act  of  1850,  chapter  112,  after 
reciting  the  appropriations  made  in  the  preceding  act  of  1848, 
created  the  comj^any  styled  ‘the  Neuse  River  Navigation  Com- 


705 


])niiy,’  for  ilu'  inoro  full  and  (U)ni|)l(‘to  a('(‘()ni|)lisliin(nit  of  tlio 
ol)j(‘(‘t  oi*  (d‘ro(*ting-  a more  eertaiTi  navi^^aliori  of  the  Itiver 
N(‘nse,  h(‘i\veeii  the  Town  of  Newherii,  in  the  (Jonnty  of  (Jra- 
v(‘n,  and  VVatso'ii’s  Ijanding,  above  Smithfield,  in  tlie  (.Vmnty 
of  Johnston.’ 

“’Phe  Neiise  Jviver  having  been  thus  recognized  as  a navi- 
gable water,  the  defendants  had  the  right,  in  common  Avith 
all  other  citizens,  to  navigate  it  with  their  boats,  and,  as  an 
incident  to  such  right,  to  remove  all  obstructions  not  put  there 
by  or  under  the  sovereign  power.  It  is  admitted  that  the  sov- 
ereign power  in  the  present  case  is  the  General  Assembly  of 
the  State.  It  would  have  been  the  general  government,  had 
the  Congress  of  the  United  States  passed  any  act  relating  to 
the  lliver  Neuse  in  execution  of  the  power  ‘to  regulate  com- 
merce with  foreign  nations,  and  among  the  several  States.’ 
Con.  of  U.  S.,  Art.  1,  Sec.  8.  Wilson  v.  Black  Bird  Creek  Marsh 
Company,  2 Peters’,  248;  (8  Curtis,  105). 

“This  raises,  upon  the  record,  the  second  main  question  in 
the  cause — whether  the  bridge,  for  the  remoAml  of  which  the 
defendants  are  indicted,  was  erected  and  kept  in  the  condi- 
tion in  which  the  defendants  found  it,  by,  or  under,  the  author- 
ity of  the  General  Assembly  of  the  State.” 

(49  N.  C.,  pp.  110-11-12.) 

North  Carolina — Davis  v.  Jerkins,  50  N.  C.,  290. 

The  suit  was  brought  for  damages  for  striking  and  carrying 
away  a part  of  the  toll-bridge  over  the  Neuse  River,  belonging  to 
the  plaintiff’s  testator.  It  was  in  evidence  that  the  bridge  had  a 
“draw”  in  it,  which  was  intended  to  allow  boats  to  pass;  that  this 
draw  was  difficult  to  be  worked ; that  it  was  not  supplied  with  ma- 
chinery of  any  kind  to  raise  and  lower  it,  but  that  this  had  to  be 
done  by  getting  on  the  bridge  and  taking  up  part  of  the  flooring; 
that  there  were  no  hands  at  the  bridge  to  raise  the  draw,  nor  were 
any  usually  kept  there  for  that  purpose;  that  this  was  alwaj^s  left 
for  the  boat  hands  to  do,  and  that  it  required  four  or  more  hands 
to  do  it;  and  detained  each  boat  from  fifteen  minutes  to  half  an 
hour,  and  sometimes  even  longer. 

The  court,  per  Battle,  J.,  said : 

“The  River  Neuse,  at  the  place  where  plaintiff’s  toll  bridge 
spans  it,  is  a navigable  stream,  and,  being  so,  the  defendants 
had  the  right  to  navigate  it  with  their  boat,  at  all  tiiues,  with- 
out obstruction  from  any  person,  unless  such  obstruction  wei'e 

authorized  by  the  sovereign  power. 

******* 


“It  is  iiianiiVstly  putting-  llu?  of  the  owrior  of  the  bridge 
above  that  of  the  navigators  of  the  river,  to  siibjeet  the  latter 
to  lli(‘  neec^ssity  of  stopi)iTig  tbeii-  boats  and  i*aising  the  draw 
with  their  own  hands,  thereby  eaiising  them  niueli  delay,  and 
oftentiinos  exposing  them  to  danger;  and  we  are  surprised 
that  tliey  have  sn})initted  imtiently  to  the  ineonvenience  so 
long. 

“lint  i)er]iaps  it  may  be  said  that  this  eonstriiction  of  the 
aet  will  very  much  impair,  if  it  do  not  destroy,  the  value  of 
toll  bridges  across  navigable  streams,  by  recpiiring  tlie  owners 
of  them  to  keej)  hands  to  raise  the  draw  when  boats  are  pass- 
ing. If  so,  it  must  be  submitted  to  as  the  necessary  result  of 
enforcing  the  paramount  right  of  navigation,  whicli,  as  we 
have  seen,  is  for  the  public  weal.  But  we  do  not  believe  that 
it  will  necessarily  produce  tliat  effect.  Tlie  owner  of  a toll 
])ridge  must  have  a keeper  attending  at  the  bridge  for  the  pur- 
l)ose  of  collecting  his  tolls.  If  we  are  not  much  mistaken,  the 
draw  may  l)e  constructed  in  such  manner  as,  by  the  aid  of 
proper  machinery,  to  be  easily  raised  by  the  keeper  ; or  at 
least  by  him  with  very  little  other  assistance.  But  whether 
this  is  so  or  not,  the  paramount  right  of  navigation  must  be 
maintained,  even  though  it  may  be  at  the  expense  of  other 
rights.  ’ ’ 

(50  N.  C.,  292,  294.) 

North  Carolina — Siaie  v.  Fool^  74  N.  C.,  402.  Dissenting  opinion 
by  two  judges,  one  of  whom  (Rodman,  J.),  says  (pp.  601-2) : 

‘‘But  that  the  Legislature  may  declare  any  and  every  ob- 
struction to  the  natural  flow  of  the  water,  whereby  an  injury 
of  either  of  these  classes  is  caused,  a criminal  offense,  without 
proof  that  the  public  health  was  in  fact  injured  by  it — about 
which  doctors  will  always  dispute  in  any  given  case — and 
without  proof  that  any  particular  traveler  was  prevented 
from  passing  in  his  canoe,  and  without  proof  that  any  partic- 
ular  land  was  rendered  more  difficult  of  drainage,  I cannot 
doubt.  From  an  act  which  is  always  or  generally  accompa- 
nied by  drainage,  the  statute  may  make  a presumption  that 
drainage  followed,  and  dispense  with  proof  of  it,  just  as  on 
an  indictment  for  obstructing  a highway  on  land  it  is  unneces- 
sary to  prove  that  any  particular  traveler  was  impeded.  The 
police  power  of  a State,  as  is  said  by  Cooley  (Const.  Lim.. 
Chap.  16)  includes  the  i)ower  to  make  all  regulations  neces- 
sary to  promote  the  public  health,  welfare  and  convenience. 
If  this  power  does  not  include  a power  to  m'ake  penal  the  ob- 
struction of  a water  course  which  is,  at  the  least,  likely  se- 
riously to  injure  public  and  private  interests,  then  the  State 
is  denied  the  most  beneficial  power  of  sovereignty,  and  must 
sink  into  insignificance  and  contempt. 


707 


is  it  miy  fair*  ar^iiincnl  against  tlio  ('onstitutiorial- 
ily  of  iliis  A(*t  to  say  that  uiidor'  it  persons  could  })(‘  punisli(‘d 
for  (I'n'vrihiU)  water  courses  oa  their  own  hinds  for  donuistic 
or  other  userul  pui’poses.  The  diversion  of  a sti-c^arn  is  a dif- 
tVu-ent  tiling-  from  isen'sit)ly  and  permanentiy  retarding  its 
coui-se.  ddie  law  respecting  such  an  use  of  it  by  rijiarian  pro- 
prietors is  Avell  understood,  and  may  be  found  in  tlie  text 
i)ooks.  'The  present  Act  has  no  bearing  whatever  on  such 
1‘ights. 

“ Hut  it  is  said  the  bed  of  Swift  Creek  is  private  property, 
and  the  Legislature  cannot  appropriate  it  to  public  use  witli- 
out  compensation.  Admit  that  the  bed  of  the  creek  at  the 
point  where  the  obstruction  was  placed  was  the  private  ])roi)- 
erty  of  the  defendant,  as  in  a qualified  sense  it  was.  He  did 
not  thereby  have  the  right  to  erect  on  it  either  what  was  a nui- 
sance at  commou  law  or  what  the  Legislature  had  declared  to 
be  one.  The  ownership  of  all  property  is  subject  to  the  maxim, 
‘sic  nterae  tur  uto  alimnni  non  laedasd  'The  Act  does  not 
attempt  to  appropriate  the  land  of  the  defendiant  to  a public 
or  private  use.  It  prohibits  him  from  no  legitimate  use  of  it. 
It  is  not  a law  special  to  him.  It  embraces  the  whole  people, 
and  says  of  all  owners  of  the  beds  of  such  streams.  You  shall 
not  so  use  your  property  as  to  injure  the  public  or  your  neigh- 
bors. ’ ’ 

Pennsylvania — Baker  v.  Lewis ^ 33  Pa.  St.,  301.  Action  for  Col- 
lision. 

“The  Ohio  is  not  a navigable  river  in  a strict  English  com- 
mon law  sense,  but  having  been  by  the  Act  of  Assembly  of  the 
21st  of  March,  1798,  declared  a public  stream  or  highway  ‘for 
the  passage  of  boats  and  raftsd  the  like  incidents  and  conse- 
quences attach  to  it,  so  far  at  least  as  the  ordinary  purposes 
of  navigation  are  concerned,  and  should  be  thus  treated  in 
the  discussion  and  decision  of  the  (luestion  involved  in  this 
cause.  The  river  being  therefore  a i)ublic  highway  for  the 
direct  navigation  of  boats,  is  conse(|uently  such  for  all  con- 
venient purposes  necessarily  aiipertaining  thereto.  And  of 
these  there  are  pei-haps  none  more  particularly  essential 
than  the  mooring  of  boats  and  other  ci’aft,  at  the  well  known 
landings  and  wharves  on  the  stream.  This  right  is  as  well  se- 
cured and  protected  by  law  as  that  of  actual  navigation.  In- 
deed, it  may  be  considered  as  a part  and  parc'cl  of  it,  and  is 
only  subject  to  restriction  on  the  })rinciples  that  govern  in  the 
use  of  all  public  ways  or  streets.  The  enjoyment  of  one  right 
must  not  exclude  the  other.  He  who  moors  his  craft  at  an  a(‘- 
customed  landing  must  be  careful  to  leave  sufficient  room  for 
the  passer-by;  the  laws  of  navigation  require  no  more  of  him. 


On  tli(‘  otlioi-  hand,  the  vessel  in  motion  must,  if  ])ossi))le,  steer 
('lenr  off  and  avoid  the  one  moored  or  at  anclior:  1 Conk.  Adm. 
Juris.,  J()().’’  (Page  dOo.) 

Pennsylvania — ISdO.  Barclay  B.  R.  S Iron  Co.  v.  Inyham,  ?>()  Pa. 
St.,  194. 


N A v i (iA BI Lrrv DE FI NITION DECLARATORY  ACT E FFECT  OF. 

‘On  respect  to  the  great  rivers  of  the  State — snch  as  are 
navigahie  by  nature,  and  therefore  public  highways  by  the 
common  Jaw — it  lias  been  repeatedly  declared,  that  the  Mill- 
dam  Act  of  2od  March,  1803,  is  but  a license  to  the  riparian 
owner,  subject  to  be  revoked  whenever  the  interests  of  the 
])ublic  require  it.  This  doctrine  was  applied  in  The  Monon- 
yahela  Navigation  Company  v.  Coons,  6 A¥.  & S.,  112,  to  the 
Voughiogeny,  which  is  one  of  the  streams  enumerated  by 
Chief  Justice  Tilghman  in  Shrunk  v.  The  Schuylkill  Naviga- 
tion Company,  14  S.  & E.,  79,  as  among  the  ‘principal  rivers’ 
of  Pennsylvania.  And,  again,  in  The  Suscjuehanna  Canal 
Company  v.  Wright,  9 W.  & S.,  11,  the  same  doctrine  was  ap- 
])lied  to  the  Susquehanna  Eiver,  which,  as  well  as  its  principal 
branches,  has  always  been  considered  a public  river.  And, 
once  again,  in  The  New  York  and  Erie  Railroad  Company  v. 
Young,  9 Casey,  181,  it  was  applied  to  the  north  branch  of  the 
Susquehanna,  always  a navigable  river  according  to  the  com- 
mon law  definition  that  has  obtained  in  Pennsylvania. 

“In  all  these  cases,  the  right  claimed  by  the  riparian  owner 
was  a permissive  right  to  use  rivers,  the  soil  of  which  had 
never  been  granted  by  William  Penn,  his  successors,  or  the 
Commonwealth.  The  rivers,  and  the  beds  of  the  rivers,  be- 
longed to  the  Commonwealth,  and  constituted  part  of  the  emi- 
nent domain.  Private  surveys  bounding  on  them  were  stopped 
at  low  water  mark.  lYhen  the  Commonwealth,  by  its  Legisla- 
ture, authorized  riparian  owners  along  such  streams,  to  erect 
dams  for  their  own  convenience  and  profit,  it  ivas  a sort  of 
public  license,  like  the  fisheries  and  ferries,  which,  by  numer- 
ous Acts  of  Assembly,  were  granted  in  all  our  i^ublic  rivers. 
And  being  a mere  license  to  trespass  on  the  public  domain, 
without  any  consideration  received  therefor,  it  had  none  of 
the  indefeasibility  of  a contract,  and  might  be  revoked  at  the 
will  of  the  sovereign,  or  be  granted  to  another. 

“But  in  respect  to  the  creeks  and  smaller  streams,  every- 
where found  in  Pennsylvania,  the  practice  of  the  land  office, 
whether  under  the  Proprietaries  or  the  Commonwealth,  has 
been  to  include  them  in  warrants  and  surveys,  as  part  of  the 
public  lands.  Streams  thus  falling  within  the  lines  of  a sur- 
vey were  covered  by  it,  and  belonged  to  the  owner  of  the  tract, 
who  might  afterwards  convey  the  body  of  the  stream  to  one 


70!) 


|)(‘i\s()ii,  Mini  iho  adjoining*  land  to  another.  When  any  of  this 
elass  ol’  streams  formed  the  boundary  of  such  tract  tlie  grantee 
a(*(iuired  title  ad  fihnn  aquae:  Coovert  v.  O'Connor,  8 Watts, 
477.  * * in  England,  those  streams  only  are  called  nav- 
igable in  whicli  the  tides  ebb  and  flow;  but  witli  us,  all  our 
public  rivers,  whetlier  fresli  or  salt,  are  navigable;  and  lienee, 
a \’ery  erroneous  idea  lias  sprung  that  such  rivers  only  are 
public  higlnvays,  and  that,  in  the  lesser  streams,  granted  by 
the  (\)mmon  weal  til  to  purchasers,  the  public  have  no  rights 
until  they  are  declared  by  law  to  be  highways.  This  is  a mis- 
('onception,  produced,  no  doubt,  by  the  very  indefinite  term 
navigable — a word  which  may  mean  an  ascending  as  well  as 
descending  navigation,  by  boats  of  considerable  burden — or 
merely  a descending  navigation,  by  arks  and  rafts,  at  all  sea- 
sons, or  by  arks  and  rafts  in  seasons  of  freshets.  Our  ideas 
of  public  and  private  rights  in  streams  of  water  ought  not  to 
be  dependent  on  so  vague  and  indeterminate  a word. 

‘^If  we  go  back  to  Magna  Charta,  we  shall  find  it  written  in 
the  23  Cap.  ‘Omnes  hvdelli  deponantur,'  &c. — a clause  which  has 
been  translated,  ‘All  weirs  from  henceforth  shall  be  utterly 
]nit  down,  by  Thames  and  Medway,  and  through  all  England, 
but  only  by  the  seacoasts.’  This  I understand  to  have  been  a 
formal  declaration  and  vindication  of  tbe  right  of  all  up- 
stream people  to  have  an  unobstructed  channel  in  streams 
capable  of  being  used  for  transportation,  not  only  for  pur- 
poses of  trade  and  commerce,  but  also  for  the  ascent  of  fish, 
which  sometimes  were  indispensable  for  subsistence.  Accord- 
ingly, it  is  laid  down  by  Lord  Hale  (see  Hargrave’s  Tracts, 
Be  Jure  Maris,  cited  in  Angell  on  Watercourses,  Sec.  535), 
‘All  rivers  above  the  flow  of  tide- water  are,  by  the  common 
law,  prima  facie  private;  but  when  they  are  naturally  of  suf- 
ficient depth  for  valuable  floatage,  the  public  have  an  ease- 
ment therein  for  the  purposes  of  transportation  and  commer- 
cial intercourse;  and,  in  fact,  they  are  public  highways  l)y 
water.  ’ 

“This,  I apprehend,  is  an  exact  definition  of  our  creeks  and 
smaller  rivers,  such  as  have  been  granted  by  warrant  and  sur- 
vey. They  are  private  property,  but  if  of  sufficient  capacity, 
at  any  stages  of  water,  to  be  used  for  transportation  of  lum- 
ber or  other  goods,  they  are  held  subiect  to  that  public  ease- 
ment which  our  English  ancestry  guarded  with  great  jealousy, 
as  numerous  old  statutes  subsequent  to  Magna  Charta  abund- 
antly attest.  When,  therefore,  our  Legislature  declares  such 
streams  to  be  public  highways,  the  act  is  merely  declaratory 
of  the  conunon  law,  but  beneficial,  nevertheless,  as  bringing 
the  stream  within  the  protection  of  the  remedial  provisions  of 
the  Milldam  Act  of  1803.  This  latter  act  is,  by  its  terms,  ap- 
plicable  to  ‘any  navigable  stream  of  water  declared  hi;  law  a 


10 


piil)li(*  liii»-liway, ’ and  it  is  itself  declaratory  of  the  common  law, 
ill  the  clause  which  forbids  liirn  wlio  erects  or  maintains  a dam 
Ho  obstruct  or  impede  the  navigation  of  sucli  stream,  or  pre- 
vent the  fish  from  passing  up  tlie  stream.’ 

“Now,  to  apply  these  rules  and  principles  to  the  case  in 
hand.  Ingham  was  the  owner  of  land  under  a patent  issued 
dd  November,  1786,  and  which  was  bounded  by  Towanda 
(h*eek.  He  was  thus  the  absolute  owmer  of  one-half  of  the 
stream — of  the  bed  of  it,  and  of  all  the  water  power  it  con- 
tained, subject  only  to  the  public’s  right  of  passage  for  such 
craft  as  was  suitable  to  the  capacity  of  the  stream,  and  to  an 
unobstructed  passage  of  fish.  . In  1813,  the  Legislature  de- 
clared this  part  of  Towanda  Creek  ‘a  public  highway  for  the 
])assage  of  rafts,  boats,  or  other  vessels.’  This  did  not  abridge 
Ingham’s  right  of  property.  The  Legislature  could  not  take 
away,  without  compensation,  property  fairly  vested  in  him. 
He  was  as  truly  and  as  entirely  the  proprietor  of  the  premises, 
after  the  Act  of  1813,  as  before.  The  water  power  was  prop- 
erty, and  it  was  his  property.  He  might  improve  it  by  dam- 
ming his  half  of  the  stream,  or,  with  the  consent  of  his  opposite 
neighbor,  the  whole  of  it;  and  of  the  water  power  so  improved 
he  could  be  no  more  despoiled,  without  compensation  made  to 
him  in  the  forms  of  the  constitution,  than  he  could  be  deprived 
of  the  solid  acres  granted  to  him  by  the  Commonwealth. 

“His  dam  must  not  obstruct  the  navigation  or  the  fish,  be- 
cause he  took  title  from  the  Commonwealth,  subject  to  that 
servitude  or  public  right — one  of  the  ancient  English  Hiber- 
ties,’  which  Magna  Cliarta  rescued  from  oblivion — which  nu- 
merous old  statutes  in  the  times  of  Henry  IV.  and  the  Ed- 
wards’ defined  and  defended — which  the  immigrants  brought 
over  with  them,  and  which  Penn  expressly  recognized  in  the 
22d  section  of  his  first  frame  of  government,  adopted  in  1683 
— ^and  which  became,  in  this  manner,  an  indefeasible  condition 
of  Pennsylvania  tenures.  The  Milldam  Act  of  1803  was  a 
fuller  provision  for  the  regulation  of  this  public  right,  and 
supplied  a statutory  remedy  for  its  infringement,  but  was  not 
a license  to  Ingham  to  build  on  his  own  land.  When  he  im- 
proved his  water  power  he  did  it  not  as  a tenant  at  will  under 
a revocable  license,  but  on  the  sure  footing  of  that  dominion 
which  an  owner  exercises  over  soil  that  he  holds  in  fee  simple 
from  his  sovereign.” 

(36  Pa.  St.,  pp.  200-203.) 

Texas — 1863.  Selmcin  v.  Wolfe,  27  Texas,  68. 

The  navigable  streams  within  the  State  are  public  highways 
and  are  exclusively  subject  to  the  control  of  the  State;  and 
the  Legislature  is  possessed  of  the  authority  to  obstruct  them 


711 


('itlioi-  wholly  ()!•  pai’lially,  il*  in  its  jiul^iiKnil  IIk^  })ul)lic  iritcn*- 
ost  will  he  promoted  tlierehy. 

I)iii  it  lias'  always  been  the  settled  ])orK*y  and  eherislnid  oh- 
je('t  of  the  State  to  guard  the  navigable  streaitis  from  obstriu'- 
tion,  and  to  secure  and  improve  them  as  the  common  high- 
ways of  trade  and  travel. 

This  policy  will  not  be  held  to  he  abrogated,  nor  tlie  enact- 
ments for  its  enforcement  to  be  repealed  by  mere  implication ; 
nor  will  a charter  granted  by  the  Legislature  to  individuals 
to  bridge  a navigable  stream  be  held  to  authorize  them  to  ob- 
struct its  navigation,  unless  the  right  to  do  so  is  expressly 
granted  or  necessarily  implied  in  the  charter. 

The  private  act  of  February  10,  1858,  authorizing  B.  Selman 
and  others  to  erect  a toll  bridge  across  the  iVngelina  River  did 
not  confer  upon  the  grantees  the  right  to  obstruct  the  naviga- 
tion of  the  stream. 

Obstructions  to  the  navigation  of  a navigable  stream,  erected 
without  authority  of  law,  are  nuisances. 

The  Court : 

[j-  (Angelina  River)  had  been  ex- 
pressly recognized'  by  the  Legislature  as  a navigable  stream 
(see  Act  approved  February  7,  1853,  extra  session,  4th  Leg.,  ]>. 
21),  and  that  the  sum  of  three  hundred  thousand  dollars  had 
been  appropriated  and  set  a])art  1)y  the  Legislature  as  a s|)e- 
cial  fund  for  the  improvement  of  the  navigable  streams  of  the 
State.  * * * 

“This  brief  reference  that  we  have  made  to  a few  of  the 
public  statutes  upon  this  subject  makes  it  evident  that  it  had 
been,  previous  to  the  ])assage  of  the  ])ilvate  act  under  which 
appellants  claim,  the  settled  policy  and  cherished  o])ject  of  the 
State  to  guard  its  navigable  streams  from  olistruction,  and  to 
secure  and  improve  them  as  the  common  highways  for  trade 
and  travel  for  such  of  its  (‘itizens  as  might  wish  to  use  them 
for  these  purposes.  Did  the  Legislature  intend  by  the  ]u*i- 
vate  act  for  tlie  benefit  of  the  ap])el hints  to  (‘hange  this  long- 
settled  policy,  and  to  repeal  these  general  public  laws,  so  far 
as  they  might  be  ap})li(ri])le  to  the  Angeliua  River  above  said 
bridge!  If  such  was  the  iiiteution  of  the  Legislature  they 
have  not  manifested  it  by  an  express  and  unetpiivocal  dei'- 
laration  indicating  their  ])urpose.  And  if  siu'h  of  these  laws 
as  have  direct  reference  to  tliis  stream  shall  lie  held  to  be  re- 
pealed, and  the  general  policy  upon  this  subjeid  with  refer- 
ence to  it  must  be  regarded  as  abrogated,  we  shall  have  to 
draw  these  conclusions  as  matters  of  inference  and  deduction 
from  the  supposed  conflict  between  the  provisions  of  this  ])ri- 
vate  act  and  the  pre-existing  laws,  ft  cannot  be  said,  however, 
uiion  a fair  and  just  construction  of  this  private  act,  that 


7\2 


tliero  is  any  n(M'(3S'Sarv  (‘onfiict  between  it  and  tlie  })reviou8 
statutes  to  wliieli  we  have  adverted.’’ 

(27  Tex.,  pp.  71,  72.) 

Virginia — 1840.  Harrison  (County)  Justices  v.  Holland,  3 Grat- 
tan (Va.),  247. 

An  Act  requiring  the  County  Court  to  lay  a levy  upon  the  titli- 
ahles  of  the  County  for  the  purpose  of  improving  the  navigation  of 
a stream  lying  within  it,  though  passed  without  the  assent  of  the 
people  (of  the  county),  is  constitutional. 

The  Act  of  March  5,  1838,  declared  Simpson’s  Creek  a public 
highway  and  required  owners  of  dams  therein  to  construct  slopes 
of  certain  dimensions  within  two  years,  and  required  the  County 
Court  to  ascertain  the  cost  of  the  slope  and  levy  it  upon  the  County 
as  a tax  and  allow  tlie  same  to  the  owner  of  the  dam. 

The  Act  further  required  the  owners  to  keep  the  slopes  in  con- 
stant repair,  and  for  violation  provided  that  the  dam  should  be 
abated. 

In  this  case  the  dam  owner  was  given  a mandamus  to  compel  the 
levy. 

The  following  interesting  paragraph  appears : 

‘‘On  the  17th  of  May,  1841,  the  County  Court  of  Harrison 

" made  an  order  that  the  owners  of  dams  on  Simpson’s  Creek 
be  notified  not  to  proceed  further  in  the  preparation  of  ma- 
terials or  otherwise,  or  in  reference  to  the  erection  of  slopes  in 
or  at  their  respective  dams,  until  after  the  next  General  As- 
sembly, in  order  that  steps  may  be  taken  for  the  repeal  or 
modification  of  the  Act  of  Assembly  in  relation  to  Simpson’s 
Creek,  and  notice  of  this  order  was  directed  to  be  given  to  all 
the  owners  of  dams  upon  the  creek. 

“At  the  next  June  term  of  the  court.  Stout  and  Holland 
moved  the  court  to  rescind  this  order,  but  the  court  refused  to 
entertain  the  motion.” 

The  effect  of  such  statutes  is  illustrated  by  a statute  declaratory 
of  the  converse,  viz. : that  the  AVheeling  Bridge  was  not  an  obstruc- 
tion to  the  Ohio  River.  The  effect  of  the  decision  is  thus  sum- 
marized in  ?\IUler  v.  Mayor  of  New  Yorh,  109  U.  S.,  385,  396: 

“In  the  AVheeling  Bridge  case,  a bridge  erected  over  the 
Ohio  River  at  ‘Wheeling,  under  an  act  of  the  Legislature  of 
Virginia,  which  prevented  the  passage  of  steamboats  with 
high  chimneys,  was  judged  to  be  an  unlawful  structure;  and 


llu'  ('oiirl  ()i-(i(‘i-(‘(l  that  it  should  I'aiscxl  so  as  to  afford  a froe 
passago  to  tlio  steamers,  or  that  soiue  other  [)lari  should  be 
a(iot)ted,  by  a day  designated,  which  would  relieve  the  nagiva- 
tioii  from  the  obstruction,  or  that  the  bridge  should  be  abated, 
Oongress  thereupon  interfered  and  declared  the  bridge,  as  it 
Avas  built  at  its  existing  elevation,  to  be  a lawful  structure. 
The  court  then  held  that  the  objection  to  the  bridge  as  an  ob- 
struction to  the  navigation  of  the  river  was  removed;  that 
although  it  might  still  be  an  obstruction  in  fact,  it  was  not  so 
in  contemplation  of  law,  and  the  decree  of  the  court  for  the 
abatement  of  the  bridge  could  not  be  enforced.  ‘There  was 
no  longer,’  said  the  court,  ‘any  interference  with  the  enjoy- 
ment of  the  public  right,  inconsistent  with  the  law,  no  more 
than  there  would  be  where  the  plaintiff  himself  had  consented 
to  it  after  the  rendition  of  the  decree.’  For  its  interference 
with  the  public  use  of  the  stream  no  individual  could  complain, 
as  the  power  which  could  control  and  regulate  that  use  had 
made  the  structure  creating  the  interference  a lawful  one.  18 
How.,  430.” 


VII. 

Judicial  Notice. 

THE  POWER  TO  TAKE  JUDICIAL  NOTICE  IS  EXERCISED  ALIKE  BY  COURTS 
OF  REVIEW  AND  COURTS  OF  FIRST  INSTANCE. 

Both  courts  are  alike  endowed  with  the  ])ower  and  both  courts 
are  alike  charged  with  the  duty  to  exerdse  it.  Whatever  the 
trial  court  could  take  judicial  notice  of  the  court  of  review  can 
take  judicial  notice  of.  If  the  trial  court  failed  to  exercise  the 
power  in  a matter  calling  for  that  exercise,  then  all  the  more  it 
is  the  duty  of  the  court  of  review  to  exercise  that  ])ower  and 
take  the  judicial  notice  which  is  necessary  for  the  ascertainment 
of  the  truth. 

And  this  is  with  stronger  reason  the  rule  in  cases  involving  a 
public  interest. 

Courts  take  judicial  notice  of  matters  of  current  history  and 
of  standard  works  in  which  those  matters  of  current  history  are 
recorded. 

In  the  case  at  bar  the  (piestion  of  what  uses  have  been  made 
of  the  Des  Plaines  Kiver  and  under  what  circumstances  those 
uses  have  been  exercised,  is  a matter  of  the  current  history  of 


714 


Illinois  and  the  nation.  To  be  sure  tlionsands  of  uses  and  acts 
of  navigation  of  the  Des  Plaines  Piver  liave  oc'curred  wliicli  are 
unrecorded  for  every  one  tliat  has  been  recorded,  but  the  re- 
corded uses  and  acts  of  navigation  of  the  Des  Plaines  River  are 
iiiatters  of  history  of  whicli  the  trial  court  and  the  court  of  review 
alike  take  judicial  notice. 

The  more  fully  to  secure  tlie  exercise  of  this  p>ower  by  the 
trial  court  a large  number  of  works  of  history  were  produced 
and  their  character  and  standing  testified  to  by  witnesses. 

And  short  passages  were  read  to  the  court  and  by  him  for- 
mally received  in  evidence  or  excluded  in  different  cases.  From 
some  of  the  books  short  passages  only  were  read  and  from  some 
no  passages  at  all  were  so  read  to  the  court. 

Again  public  documents  of  the  State  and  of  the  United  States, 
reporting  acts  of  the  Government  in  surveying  the  river  for  im- 
provement, w^ere  similarly  produced  and  referred  to. 

Again,  matters  of  science  are  proper  subjects  of  judicial  no- 
tice both  by  trial  courts  and  courts  of  review.  So  volumes  of  re- 
ports by  the  engineer  corps  of  the  United  States  bearing  upon 
surveys  and  the  data  of  navigation  as  a matter  of  science  were 
produced  to  the  court  and  short  passages  read  therefrom.  Some 
of  the  volumes  produced  were  read  from  in  short  passages  only 
and  some  not  at  all. 

These  books  are  public  documents,  official  publications  of  the 
United  States  Government;  and  the  matters  which  they  contain 
are  all  matters  of  judicial  notice. 

Again,  numerous  former  statutes  of  the  State,  and  resolutions 
of  the  General  Assembly,  were  produced  and  called  to  the  atten- 
tion of  the  court.  Some  were  read  in  full,  some  w^ere  read  in  part, 
some  were  produced  but  not  read  and  some  were  not  even  pro- 
duced, but  were  commented  on  or  referred  to  in  the  course  of 
the  hearing. 

All  of  these  alike,  whether  produced  and  formally  offered  in 
evidence  or  not,  are  proper  subjects  of  judicial  notice,  and  will  be 
judicially  noticed  l)y  this  court  whether  1)rought  to  the  attention 
of  the  court  below  or  not.  It  was  contended  contra,  and  held  by 


715 


the  trial  (‘oiirt,  that  there  was  no  (X'easion  to  olTer  any  of  tlnnn 
in  evidence  or  encninber  the  record  with  them  in  any  wise  he- 
(*aiise  this  court  and  all  future  courts  to  which  the  case  ini^ht 
go  would  take  judicial  notice  of  them  in  any  event  and  it  is  true 
tk-  v^^Lirts  will  so  do.  This  position  was  undoubtedly  correct.  The 
act  of  producing  and  offering  some  of  them  was  the  act  of  abun- 
dant caution,  but  furnishes  no  measure  of  the  ability  and  discre- 
tion of  this  court  in  the  exercise  of  its  power  of  judicial  notice. 

The  defendant  adopted  the  policy  of  merely  calling  attention  to 
such  matters  without  introducing  them  in  evidence. 

“Counsel  for  Defendant:  * * * j am  not  going  to  offer 

them  in  evidence  because  I understand  the  court  takes  judi- 
cial notice  of  them/’  etc.  (Abst.,  p.  1064.) 

It  is  the  right  and  duty  of  the  court  of  review  to  examine  any 
and  all  of  them  as  far  as  it  deems  necessary  to  ascertain  the 
truth; — and  not  only  that,  but  this  court  with  its  superior  edu- 
cation and  means  of  information,  has  at  its  command  large  stores 
of  historic  and  scientific  knowledge  which  were  beyond  the  ken 
and  reach  of  counsel  in  the  trial  court.  And  all  these  are  part 
and  parcel  of  the  judicial  knowledge  and  legal  equipment  which 
this  court  of  review  brings  to  the  discharge  of  its  task.  Far  from 
being  confined  to  the  judicial  notice  whicli  the  trial  judge  may 
have  taken,  this  court,  in  the  discharge  of  its  public  duty,  will 
leave  no  matter  of  history  or  science  that  is  within  its  range  and 
relevant  to  this  subject,  out  of  account. 

These  pro})ositions  are  illustrated  by  the  authorities  cited  in 
the  brief. 

In  State  v.  W abash  Paper  Coaipany,  51  Northeastern,  949,  the 
Appellate  Court  of  Indiana,  after  calling  attention  to  the  fact  that 
the  “Western  Gazetteer”  for  1817,  p.  89,  had  stated  that  the 
Wabash  Eiver  was  said  to  be  navigable  for  keel  boats  for  four 
hundred  miles;  and  that  the  “Indiana  Gazetteer,”  published  in 
Indianapolis  in  1850,  at  page  21,  stated  that  the  Wabash  River 
was  navigable  for  four  hundred  and  fifty  miles; — stated  as  fol- 
lows : 

“Courts  take  judicial  knowledge  of  the  geography  of  the 
country,  and  hence  judicially  know  that  the  Wabash  and 
Miami  Counties  are  less  than  400  miles  distant  from  the 


jnoutli  of  tlie  Wabash  liiver.  We  also  judicially  know  that 
the  Cities  of  Wabash  and  Peru  and  other  towns  in  said 
(‘ounties  are  situated  on  the  banks  of  such  river.  From  what 
we  have  said  and  the  authorities  cited,  we  think  it  must  be 
held  that  the  Wabash  Kiver  is  a navigable  river,  and  hence 
a public  highway.” 

In  McCoy  v.  Columhian  Exposition,  18(1  111.,  ‘35(),  in  a suit  on  the 
subscri])tion  to  the  capital  stock  of  the  “World’s  Columbian  Ex- 
j)osition,”  compliance  with  the  condition  in  the  subscription  that 
the  exposition  be  held  in  Chicago  need  not  be  proved,  since  the 
fact  is  historical  and  of  such  notoriety  that  the  Court  will  take 
judicial  notice  thereof.  The  Court  says: 

“The  subscription  contained  the  condition  that  the  exposi- 
tion should  be  located  in  Chicago,  and  it  is  said  that  there  was 
no  proof  of  the  performance  of  that  condition.  The  con- 
stitution of  the  State  was  amended  to  authorize  the  corporate 
authorities  of  the  City  of  Chicago  to  issue  bonds  in  the  aid  of 
the  exposition  to  be  held  in  the  City  of  Chicago,  and  the  fact 
that  it  wuis  located  and  held  there  appears  from  public  acts 
of  Congress.  From  numerous  such  acts  it  became  a historical 
fact  of  such  public  notoriety  that  the  courts  wdll  take  judicial 
notice  of  it.” 

The  above  case  was  decided  in  the  Appellate  Court  for  the  First 
District,  and  is  reported  in  87  Illinois,  Appellate  605.  In  the  opin- 
ion in  the  Appellate  Court  by  Mr.  Justice  Fbeemax",  the  point  of 
judicial  notice  is  not  made  at  all,  but  is  raised  for  the  first  time 
in  the  opinion  in  the  Supreme  Court  by  Mr.  Justice  Cartwright, 
in  the  words  above  quoted. 


717 


IX. 


TIIK  VAHIABLE  A^'ID  PR()GRl^:SSlVE  DEVELOPMENT  OF  NAVIGATION  DOES  NOT 
DES^rROY  THE  PUBLIC  RIGHT  IN  STREAMS  ORIGINALLY  NAVIGABLE. 

RECENT  DEVELOPMENTS  HAVE  GIVEN  FRESH  VALUE  TO  SHALLOW  DRAFT 

NAVIGATION. 

A.  AN  EXISTING  PUBLIC  RIGHT  OF  NAVIGATION  IS  NOT  LOST  BY^ 
CHANGES  IN  THE  CONDITION  OR  USE  OF  THE  STREAM. 

B.  BUT  CHANGES  IN  THE  STREAM  BENEFICIAL  TO  NAVIGATION 
IVILL  ENLARGE  THE  RIGHT  OF  NAVIGATION. 

C.  NAVIGATION  IS  A PROGRESSIVE  ART.  CHANGES  IN  THE  ART  OF 
NAVIGATION  AND  TRAVEL  MAY  ENLARGE,  BUT  NOT  DIMINISH,  THE  EIGHT 
OF  NAVIGATION. 


A. 

AN  EXISTING  PUBLIC  RIGHT  OF  NAVIGATION  IS  NOT  LOST  BY  CHANGES  IN 
THE  CONDITION  OR  USE  OF  THE  STREAM. 

People  V.  Page,  39  N.  Y.  App.  Div.  110,  relative  to  the  Mohawk 
Biver.  The  court  there  said : 

^‘The  fact  that  at  present  under  the  changed  conditions  in 
the  stream,  its  use  for  commerce  or  navigation  is  insignifi- 
cant, does  not  destroy  the  proprietary  rights  of  the  State,  or 
give  the  defendant  the  right  to  appropriate  the  stream  and 
bed  to  his  individual  use.’’ 

In  Attorney  General  v.  City  of  Eau  Claire,  37  Wis.,  400,  Kyan, 
C.  J.,  said: 

‘‘The  actual  navigation  may  he  little  and  the  obstruction 
might  be  slight — ^so  the  affidavits  tend  to  show— but  neither 
the  right  nor  the  wrong  is  a question  of  degree.” 

No  intention  will  be  implied  to  discontinue  the  right  of  wiay  in 
the  stream. 

Conn.  River  Lumber  Co.  v.  Olcott  Falls  Co.,  64  N.  IT., 
290;  13  L.E.  A.,  826. 


71S 


B. 

C'IIAN(JKS  IN  TllK  STREAM  INCREASINCJ  ITS  DEPTH  AND  IMPROVING  THE 

NAVIGATION  ENLARGE  THE  RIGHT  OF  NAVIGATION.  A STREAM  SO 
IMPROVED  IS  TO  BE  ('ONSH)ERED  IN  ITS  LATTER  CAPACITY. 

Hdudte  V.  Warren,  218  111.,  108,  120. 

There  the  court  said : 

‘‘SoTiie  years  ago  a lock  and  dam  was  built  at  LaGrange, 
lielo'w  the  lands,  which  raised  the  water  of  tlie  lake  about  18 
inches;  and  afterward  the  Sanitary  District  Canal  was  opened, 
raising  tlie  water  tliree  or  four  feet  more,  so  that  the  natural 
stage  of  the  water  in  the  river  is  about  five  feet  higher  than  in 
its  natural  condition.  * * * Appellant  did  not  lose  his 

title  to  the  lands  by  their  submergence,  and  we  do  not  under- 
stand counsel  for  appellees  to  claim  that  he  did,  except  as 
against  a supposed  public  right  of  navigation,  hunting  and 
fishery.  * * * The  evidence  sufficiently  shows  that  there 

are  considerable  spaces  on  those  lands  permanently  sub- 
merged to  such  a depth,  that  there  is  a right  of  navigation  in 
the  public.’^ 

The  same  Sanitary  District  Canal,  which  submerged  those  lands 
and  increased  the  depth  of  that  river  three  or  four  feet,  has  in- 
creased the  depth  of  the  Des  Plaines  Eiver  throughout  the  naviga- 
ble reach  here  under  consideration  by  the  same  three  or  four  feet. 

The  navigability  of  a stream  so  improved  is  to  be  judged  by  its 
enlarged  capacity. 

Mendota  Club  v.  Anderson,  101  Wis.,  479,  s.  c.  78  N.  A¥., 
185. 

Reg.  V.  Betts,  16  Q.  B.,  1022. 

This  principle  works  both  ways;  the  development  of  the  art  of 
navigation  by  the  use  of  larger  vessels  requiring  the  use  of  greater 
depths  of  water,  will  extend  the  paramount  right  of  navigation,  so 
that  structures  placed  under  the  river,  which  were  lawful  and  did 
not  interfere  with  navigation  when  constructed,  will  become  un- 
lawful by  reason  of  such  obstruction  resulting  from  the  increased 
use  of  the  river. 

West  Chicago  St.  Rg.  Co.  v.  The  People,  214  Ilk,  9,  20. 

The  right  to  have  water  flow  in  an  artificial  channel  and  to  flood 


liuid  whicli  it  would  not  overflow  ruiturnlly  may  be  a(^(iui red  })y 
pryscripiion. 

Vail  V.  Mix,  74  111.,  127. 

Ballard  v.  Sfruclonan,  128  Til.,  (>80. 

T<)f(d  V.  Bonnefoy,  128  111.,  088. 

And  the  public  which  turned  the  water  in  for  public  purposes  at 
its  own  expense  acquires  this  right  the  same  as  a private  person. 

Beidler  v.  Sanitary  District  of  Chicago,  211  111.,  028,  085. 

So,  on  the  other  hand,  the  development  of  navigation  by  the  use 
of  new  processes  involving  only  a shallower  depth,  will  enable 
navigation  to  be  carried  on  over  waters  which  formerly  were  not 
used,  and  the  erection  of  dams  increasing  depths  which  were  orig- 
inally shallow,  to  an  amount  sufficient  for  the  use  of  the  stream, 
will  enlarge  the  right  of  navigation  accordingly. 

Mendota  Club  v.  Anderson,  101  Wis.,  479. 

The  right  of  navigation  is  paramount,  and  when  increased  needs 
for  navigation  require  it,  all  uses  and  claims  inconsistent  with  the 
right  of  navigation  must  give  way. 

Bridge  Co.  v.  IJ.  8.,  105  U.  S.,  470. 

State  of  Pennsylvania  v.  Wheeling  Bridge  Co.,  13  How., 
518. 

U.  8.  V.  City  of  Moline,  82  Fed.,  592. 

Scranton  v.  Wheeler,  179  U.  S.,  159. 

Gihson  V.  U.  8.,  166  U.  S.,  269. 

U.  S.  V.  Bellingham  Bay  Boom  Co.,  176  U.  S.,  211. 

Wisconsin — 1899.  Mendota  Club  v.  Anderson,  101  Wis.,. 
479;  78  N.  W.,  185. 

This  was  a proceeding  to  restrain  the  defendant  from  boating 
upon  land  claimed  by  the  plaintiff.  The  defendant  made  the  fol- 
lowing defenses : 

‘‘  (7)  That  what  is  known  as  ‘Farwell  Dlam’  was  completed 
during  1850,  at  the  outlet  of  Lake  Mendota  on  the  south  side 
thereof.  (8)  That  j)rior  to  the  erection  of  that  dam  there 
was  a sand  bar  extending  from  at  or  near  the  high  land,  east- 
erly of  the  south  end  of  Cattish  channel,  westerly  to  the  east 
side  of  the  south  end  of  the  channel,  and  extended  from  the 
west  side  of  the  south  end  of  the  channel,  in  a westerly  direc- 


7^20 


tioii,  towards  dry  land  to  the  west;  tliat  the  bar,  before  the 
erection  of  the  dam,  was  exposed  above  tlie  surface  of  the 
water  for  a considerable  distance  from  the  west  side  of  the 
channel,  but  not  for  the  whole  distance  to  the  west  shore, 
at  the  west;  that  before  the  dam  was  erected,  and  at  ordinary 
stages  of  water,  a portion  of  the  bar  west  of  the  Catfish  chan- 
nel was  submerged  and  (‘overed  by  water  to  such  a de]:)th  as 
to  permit  rowboats  to  pass  from  the  body  of  the  lake  south  of 
the  bar  to  the  water  north  thereof,  as  stated.  * * '*  (12) 

That  after  the  erection  of  the  dam  the  waters  of  the  lake 
were  raised  to  some  extent,  and  the  dry  land  referred  to  was 
somewhat  lessened  in  extent,  so  that  a less  portion  of  the  bar, 
and  the  land  upon  which  grass  grew,  near  the  Catfish  channel, 
remained  exposed  in  the  ordinary  stages  of  water.  (13)  That 
since  the  erection  of  the  dam  the  depth  of  the  water  in  the 
area  north  of  the  meandered  line,  at  ordinary  stages  of  water, 
has  varied  from  shallow  water  in  certain  places  to  the  depth 
of  a number  of  feet  in  other  places.  (14)  That  the  Catfish 
Creek  is  a navigable  stream,  and  is  and  has  been  navigable  for 
all  such  boats  as  are  commonly  used  upon  the  lake.  (15) 
That  since  the  erection  of  the  dam  the  area  of  the  water  west 
of  the  Catfish  channel,  and  south  of  Six  Mile  Creek,  described, 
is  and  has  been  continuously  navigable  for  rowboats  and  sail- 
boats, and  has  been  continuously  used  for  navigation  by  small 
boats  in  connection  with  hunting,  boating  and  fishing.  ’ ’ 

(78  N.  W.,  185, 186-7.) 


The  court  found  these  defenses  sustained  by  the  facts  and  the 
defendant  appealed.  The  court  above  states  this  contention  thus : 

‘‘Counsel  for  the  plaintiff  contends  that  the  Farwell  Dam, 
completed  in  1850,  raised  the  water  of  the  lake,  at  that  point, 
four  feet  higher  than  it  was  previously;  and  that  it  raised  the 
water  on  the  premises  in  question,  at  an  ordinary  stage  there- 
of, some  two  or  three  feet  higher  than  it  was  previously.  The 
court  found  that,  before  the  erection  of  the  dam,  and  at  ordi- 
nary stages  of  water,  a portion  of  the  bar  west  of  the  Catfish 
channel  was  submerged  and  covered  with  water  to  such  a depth 
as  to  permit  rowboats  to  pass  readily  from  the  body  of  the 
lake  south  of  the  bar  to  the  water  north  of  the  bar ; and  that 
there  was  water  upon  a considerable  portion  of  the  area  in- 
cluded within  the  government  survey  of  the  two  sections  men- 
tioned ; and  that  a portion  thereof  contained  bogs ; and  that 
aside  from  such  bogs  and  hard  land  near  the  west  side  of  the 
Catfish  channel  there  was  an  area,  nearly  as  large  as  now  cov- 
ered by  water,  which  could  not,  before  the  erection  of  the  dam, 

< be  used  for  agricultural  purposes. 

**#*#*# 

“That  dam  was  n permanent  structure,  designed  to  be  sucb. 


721 


and  lias  so  roinaiiiod  for  nearly  half  a eentnry.  ddierc^  is  no 
(*laiin  that  it  was  an  iinilawful  stiau'tnre.  7\lthon^“h  an  artifieial 
stnudnre,  whi(‘h  eonsiderahly  increased  tlie  depth,  the  extent, 
and  hi-eadth  of  the  waters  on  the  premises  in  cpiestion,  yet  the 
jinhlic.  had  the  riglit  to  navigate  such  waters  after  they  were 
so  iiun'eased  in  vohnne,  tlie  same  as  tliongli  tliey  had  always 
i*emained  in  that  condition.  Whisler  v.  Wilkinson,  22  Wis., 
odd;  Volk  V.  Eldred,  28  Wis.,  410;  Weatlierhij  v.  Meiklejohn,  50 
AVis.,  78;  .18  N.  W.,  697;  Smith  v.  Youmdns,  96  AVis.,  108;  70 
N.  AV.,  1115,  and  cases  cited  by  Mr.  Justice  Pinney  on  page 
110,  96  AA^is.,  and  page  147,  70  N.  W.  Certainly,  persons  navi- 
gating the  lake  cannot  be  required  or  expected  to  carry  with 
them  a cliart  and  compass  and  measuring  lines,  to  determine 
wliether  they  are  at  all  times  within  what  were  the  limits  of 
the  lake  prior  to  the  constiaiction  of  the  dam.  The  question  as 
to  whether  a riparian  owner  may  rightfully  till  in  or  build  out 
to  navigable  water,  suggested  by  counsel,  is  not  here  involved. 
As  to  the  Cattish  Creek,  the  federal  statute,  as  it  has  existed 
for  more  than  a century,  declares  that  ‘all  naviga])le  rivers, 
within  the  territory  occupied  by  the  public  lands,  shall  remain 
and  be  deemed  public  highways;  and,  in  all  cases,  where  the 
opposite  banks  of  any  streams  not  navigable  belong  to  differ- 
ent persons,  the  stream  and  the  bed  thereof  shall  become  com- 
mon to  both.’  Eev.  St.  U.  S.,  2476;  Shively  v.  Boivlhy,  152 
TI.  S.,  82,  88 ; 14  Sup.  Ct.,  548.  The  federal  statutes,  regard- 
ing the  duties  of  surveyors  of  public  lands,  cited,  apply  to  such 
navigable  streams.  It  is  conceded  that  the  portion  of  the  Cat- 
fish in  question  is  a navigable  stream.  Willoiv  River  Cluh  v. 
Wade  (AVis.),  76  N.  AAh,  278.  AVhat  has  been  said  about  the 
raising  of  the  waters  of  the  portions  of  the  lake  in  (piestion 
applies  equally  to  the  raising  of  the  water  and  broadening  and 
dee})ening  of  the  channel  of  Catfish  Creek.  * * * AVe  must 

hold  that  the  defendants  hy  going  upon  the  waters  in  (juestion 
with  their  lioats,  as  found  by  the  (‘ourt,  did  not  trespass  iq)()n 
the  lands  of  the  ])laintiff.  The  judgment  of  the  cii’cuit  court 
is  affirmed.”  (78  N.  W.,  188,  190.) 

The  point  in  Smith  v.  Yonman,  96  AVis.,  108;  70  N.  AV.,  1115, 
cited  in  the  foregoing  case,  is  thus  (hted : 

“1.  AVhere  the  natural  outlet  of  a lake  is  closed,  and  an 
artificial  outlet  made,  near  whicli  a dam  for  milling  purposes 
is  constructed  and  maintained  for  forty  years,  whereby  the 
water  is  caused  to  flow  back  over  the  lands  of  other  ri])arian 
owners,  rendering  said  lands  valuable  as  pleasure  T*esorts,  the 
dam  owner,  so  long  as  he  retains  his  easement,  has  no  right  to 
lower  the  water  below  the  level  of  the  lowest  })oint  at  which  it 
has  been  during  said  period,  so  as  to  leave  the  shores  marshy 

and  unhealthful,  and  inq)air  the  value  of  the  ]*i{)arian  })roperty. 

* * * * * * * " 


“Tliat  Lake  Leiiiali,  as  it  now  exists,  originally  consisted 
of  two  meandered  lakes,  wliieli  were  separated  by  a strip  of 
marsh  about  HO  rods  wide,  tlirougli  Vvdiieb  ran  a small  stream. 
The  outlet  of  the  more  northerly  of  the  lakes  was  }>y  a sinalj 
S'ti-eam  ('ailed  I>enlah  River,  wliicdi  runs  northerly,  and  tlieri 
easterly  until  it  empties  into  Mnkwanago  (h'eek,  and  said 
(‘reek  I'lins  into  Fox  River,  [n  1808  a dam  vras  built  across  the 
outlet  of  said  lake  at  about  the  ])()int  wliere  it  left  tlie  lake, 
and  the  waters  of  tlie  lake  were  raised  a few  feet,  creating 
l)()wei-  for  a sawmill  erected  at  tlie  dam.  After  1816,  and  be- 
fore 1852,  the  original  outlet  was  (dosed  hy  an  embankment, 
and  has  ever  since  so  remained,  and  an  artincial  outlet  to  said 
lakes  was  created,  at  which  point  another  dam  was  cre- 
ated, raising  tlie  waters  in  said  lake  to  tlie  height  of  6 feet  above 
tlieir  natural  level,  and  18  inches  higher  than  by  the  former 
dam,  ci'eating  a body  of  water  known  as  ‘Mill  Lake,’  and  a 
new  and  artificial  outlet  for  the  said  lakes,  so  that  their  waters, 
after  passing  over  such  dam,  flowed  b}^  a new  channel  into  said 
Beulah  River,  and  in  consequence  of  such  dam  the  waters  of 
the  said  tvm  lakes  were  so  raised  as  to  flood  to  a considerable 
depth  the  marsh  land  formerly  separting  them,  and  making  of 
them  one  body  of  water  upwards  of  three  miles  in  length,  and 
varying  in  width  from  a quarter  of  a mile  to  one  mile  and  a 
(piarter,  and  an  area  of  about  900  acres.  All  these  changes 
were  made  by  Ball  & Mower,  the  remote  grantors  of  H.  A. 
Youmans,  under  and  through  whom  the  defendants  claim  their 
rights  and  interests ; and  Ball  & Mower  built  upon  a site  near 
said  dam  a grist  mill,  which  was  used  and  operated  by  the 
power  thus  provided  until  it  was  destroyed  by  fire  in  1876. 
* * * One  effect  of  the  construction  of  said  artificial  out- 

let, and  the  diversion  thereto  of  the  natural  flow  of  tlie  waters 
of  said  lakes,  and  the  construction  and  maintenance  of  said 
dam  and  embankment,  was  to  deepen  the  waters  of  the  lakes, 
and  set  said  waters  up  and  back  against  the  hard  and  higher 
banks  and  to  make  said  lakes  navigable  for  rowboats,  small 
sailboats  and  steam  launches,  and  to  make  the  banks  eligible 
and  desirable  sites  for  summer  cottages  and  summer  resorts, 
and  to  make  said  lakes  a desirable  place  for  fishing,  boating 
and  recreation,  and  to  make  the  margin  of  the  lake  touch  the 
grassy  banks,  and  submerge  the  boggy  and  marshy  shores,  as 
they  before  existed,  and  to  render  the  banks  readily  accessible 
by  small  row  and  pleasure  boats.  About  tlie  year  1888,  and 
from  time  to  time  thereafter,  sundry  of  the  ]daintiffs,  relying 
upon  said  conditions,  and  the  level  of  the  lake  as  then  existing, 
and  as  having  so  uniformly  existed  for  more  than  40  years, 
built  summer  homes  for  themselves  and  families,  or  summer 
resorts  for  recreation,  and  purchased  divers  lots  and  parcels 
of  land  fronting  and  bounded  on  said  lakes  for  that  purpose, 


niul  lund'O  divers  and  sundry  valuable  iinpi'ovcniHuits  on  said 
lots  to  that,  end,  as  did  many  oilier  })ei'sons.  * * * After 

tile  destrnetion  of  the  'niill  in  1H7()  the  powei*  ereatofl  hv  the 
dam  had  not  been  used.  ^ ^ 

‘‘That  loNvering  the  waters  of  said  lake  will  sulistantially 
im})!iir  the  value  and  availaliility  of  the  })areels  and  lots  of 
land  owned  by  the  ])laintiffs  and  tionnded  on  tlie  lake;  tlie 
waters  will  recede  from  its  hanks,  and  in  almost  all  |)laces 
strips  of  slimy,  boggy  and  marshy  shore  .will  he  uncovered, 
})reventing  access  by  boats  to  the  plaintiffs’  piers,  and  will 
substantially  impair  and  well-nigh  destroy,  the  beauty  of  the 
lake,  and  its  adaptation  and  availability  for  snmmer  resi- 
dences and  snmmer  resorts,  and  make  the  vicinity  imliealtlifnl, 
and  render  the  plaintiffs’  improvements  practically  valneless 
for  the  purposes  for  which  they  were  constructed.  Shortly  be- 
fore the  action  was  commenced,  said  bnlkheads  were  replaced 
to  the  height  of  two  feet  or  more,  and  so  that  the  waters  of 
the  lake  rose  and  overflowed  the  bnlkheads.  The  plaintiffs 
asked  indgment  that  the  defendants,  their  agents,  etc.,  be  per- 
petually restrained  from  in  any  way  raising,  taking  out,  or 
removing  from  the  :said  dam  any  of  the  ])nlkheads  or  waste  or 
flash  boards  in  or  on  the  same,  and  from  in  any  way  throwing- 
down,  lowering  or  opening  the  dam  and  from  in  any  way  inter- 
fering with  or  drawing  down  the  water  in  Lake  Beulah.  The 
defendants  insisted  upon  their  rigid  to  use  and  withdraw  the 
waters  of  said  lake,  according  to  their  needs  and  discretion. 

‘‘It  has  long  been  settled  that  the  artificial  state  or  condi- 
tion of  flowing  water,  founded  upon  ])rescri})tion,  becomes  a 
substitute  for  the  natural  condition  previously  existing,  and 
from  which  a right  arises  on  the  part  of  those  interested  to 
have  the  new  condition  maintained.  The  water  course,  though 
artificial,  may  have  originated  imder  such  circnnistances  as  to 
give  rise  to  all  the  rights  that  i'i])arian  pro])i*ietors  have  in  a 
natural  and  |)ermanent  stream,  or  liave  been  so  long  used  as  to 
become  a natural  Avater  course  })rescriptively.  * * * It  is 

u})on  this  groimd  that  when  the  natural  outlet  of  Ij-ake  Beulah 
Avas  closed,  and  so  remained  for  over  20  years,  the  artificial 
outlet  at  that  time  opened,  and  since  maintained  during  that 
period,  became  the  natural  outlet,  Avith  all  its  legal  incidents 
and  consequences.  In  Belknap  v.  Tyimhle,  M Ihiige,  577,  ()05, 
it  was  held  ‘that  the  rule  must  ])e  reciprocal ; that  the  pro])rie- 
tor  of  land  at  the  liead  of  a stream,  avIio  changes  the  natural 
flow  of  water,  and  has  continued  such  change  for  20  years, 
cannot  afterwards  be  permitted  to  restore  tlie  fioAV  of  water 
to  its  natural  state,  when  it  Avill  have  the  effect  to  destroy  the 
mills  of  other  proprietors,  which  have  been  erected  in  refer- 
ence to  such  change  in  the  natural  flow  of  the  stream.’  Washli. 


Kasein.  In  jllaflieu'son  v.  TIoffm(i7i,  77  Mich.,  421, 

4‘)4,  42  N.  W.,  879,  the  rule  tliiis  stated  in  Belknap  v.  Trimble, 
supra,  was  approved.  Lampman  v.  Milks,  21  N.  Y.,  505;  Rob- 
erts V.  Boberts,  55  N.  Y.,  275.  It  is  also  supported  by  Delaney 
V.  Boston,  2 liar.  (Del.),  489-491  ; Middleton  v.  Gregorie,  2 
l\ich.  Laws,  031-087.” 

(70  N.  W.,  pp.  1115-10-17.) 

The  same  rule  is  laid  down  in  Wetherby  v.  Meiklejohn,  50  Wis., 
78;  18  N.  AV.,  097. 

The  court  applied  the  same  principles  and  quoted  Coulson  & 
Forbes,  thus  : 

‘‘In  the  recent  English  work  of  Coulson  & Forbes  on  the 
l^aw  of  AVaters,  page  410,  it  is  said  that  ‘where  a navigable 
river  changes  its  channels,  although  the  soil  of  the  bed  and  the 
right  of  fishing  may  be  vested  in  the  owner  of  the  adjoining 
land,  so  as  to  bar  the  right  of  the  crown  to  the  bed  and  of  the 
})uhlic  to  the  fishing,  it  would  appear  that  the  right  of  naviga- 
tion will  follow  to  the  new  channel,  the  test  being  whether  the 
river  remains  tidal.’  ” (13  N.  AY.,  098-099.) 

C. 


NAVIGATION  IS  A VAEIABLE  AET. 


CHANGES  IN  THE  AET  OF  NAVIGATION  AND  TEAVEL  MAY  ENLAEGE,  BUT 
NOT  DIMINISH,  THE  EIGHT  OF  NAVIGATION. 

The  Wheeling  Bridge  case,  13  How.,  518,  561-2,  plainly  supports 
this  proposition.  In  a state  of  nature,  the  Ohio  Eiver  did  not  ad- 
mit of  the  passage  of  boats  of  deep  draft  and  heavy  loads,  with  tall 
chimneys  and  pilot  houses,  and  it  was  only  as  improved  that  the 
river  presented  a highway  to  which  the  bridge  was  an  obstruction. 

The  commissioner  especially  found  (p.  *559)  : 

“1.  That  the  bridge  is  not  an  obstruction  to  the  free  navi- 
gation of  the  Ohio  by  any  vessels  propelled  by  sails. 

“2.  That  the  bridge  is  an  obstruction  of  the  free  naviga- 
tion of  the  Ohio  by  vessels  propelled  by  steam.  ’ ’ 

The  court  held  the  bridge  an  unlawful  obstruction.  The  art  of 
navigation  had  been  enlarged  by  the  invention  of  steam  and  by  the 
improvement  of  the  river.  As  the  court  says,  page  *561,  “Appro- 
})riations  by  congress  have  been  frequently  made,  to  remove  ob- 
structions to  navigation  from  its  channel.” 


The  Wheeling  Bridge  ease  necessarily  involves  the  })rinei})l(‘s 
that  the  right  of  navigation  grows  pari  passu  with  the  iniprove- 
inent  of  tlie  stream  and  tlie  improvement  of  the  art.  The  Wheeling 
I>ridge  did  not  iiiterfere  with  navigation  of  the  type  that  had  ex- 
isted on  the  stream  for  a century  before  tlie  introduction  of  steam 
vessels. 

The  Wheeling  Bridge  did  not  interfere  with  navigation  of  the 
type  that  had  existed  before  the  improvement  of  the  channel,  but 
it  did  interfere  with  navigation  of  the  kind  developed  by  the  im- 
lirovement  of  the  cliannel  and  the  introduction  of  steam ; therefore 
the  court  enjoined  the  maintenance  of  the  bridge  and  decreed  its 
removal.  The  right  of  navigation  enlarged  to  correspond  with  the 
improved  stream  and  the  improved  method  of  using  it. 

Taney,  C.  J.,  dissented  in  that  case — partly  upon  the  same 
grounds  which  he  embodied  in  the  dicta  in  Strader  v.  Graham,  10 
How.,  82.  The  Wheeling  Bridge  case  originally  came  before  the 
court  at  the  December  term,  1849  (9  How.,  647). 

The  dissent  for  lack  of  jurisdiction  was  entered  by  Daniel,  J. 
(who  concurred  with  Taney,  C.  J.),  at  the  very  first  presentment  of 
the  case  (9  How.,  659).  That  dissent  was  renewed  on  the  merits 
(13  How.,  579),  and  after  the  other  questions  were  disposed  of, 
Taney,  C.  J.,  and  Daniel,  J.,  again  dissented  on  the  ground  that 
the  draw  provided  for  was  larger  than  need  be.  (13  How.,  627.) 

Finally  congress  passed  a statute  legalizing  the  bridge.  After 
the  passage  of  the  statute,  a storm  broke  down  the  bridge.  The 
State  of  Pennsylvania  thereupon  obtained  a default  injunction 
against  its  restoration.  The  defendant  disregarded  the  injunction ; 
but  the  court  (three  judges  dissenting)  declined,  as  a matter  of 
discretion,  to  make  the  injunction  permanent,  or  to  })unish  the  con- 
tempt. (18  How.,  421.) 

It  was  decided  on  the  merits  at  the  December  term,  1851.  (13 

How.,  518.) 

If  the  court  had  foreseen  the  mis-use  of  those  dicta  in  the  Stra- 
der case,  as  they  did  in  the  Wheeling  Bridge  case,  Taney  opinion 
would  have  been  a dissenting  opinion  in  the  one  case  as  well  as  the 
other. 


That  ('as(‘,  its(‘ir,  had  important  politic-a!  a.s})ects,  whifdi  it  is  urn 
iiecossai-y  to  discuss  now,  hut  it  })oi-e  an  intimate  I'elation  to  the 
[)oIitical  asi)ects  of  the  Dred  Scott  case. 

rliistice  Benj.  R.  C'URtts  wrote  concerniing  the  same: 

remem1)er  })eing  told  that  the  opinions  of  Judge  Daniel 
and  (diief  Justice  Taney  in  the  Wheeling  Bridge  case  were 
])uhlished  withoiit  the  knowledge  of  the  court  and  extensiveiy 
(drculated  in  Virginia  and  west  of  the  mountains.  1 thought 
at  the  time  this  was  done  to  })romote  the  views  of  those  in 
whose  favor  those  o})inions  were;  and  it  did  not  occur  to  me 
that  such  a ])ublication  was  disres])ectful  to  myself  and  to*  the 
other  judges  \Vho  concurred  in  tlie  opinion  of  the  court.”  (1 
Life  and  Writings  of  B.  R.  Curtis,  p.  218.) 

i\lr.  Justice  McLean  in  delivering  the  opinion  of  the  court  said: 

“There  is  no  better  evidence  of  utility  than  the  ])rogress 
made  in  the  structure  of  steamboats  and  of  the  machinery  by 
which  they  are  propelled.  Men  wdio  are  engaged  in  naviga- 
tion learn  by  experience,  and  adopt  that  which  will  be  most 
conducive  to  their  own  interests.”  (13  How,,  *573.) 

“However  numerous  these  roads  may  l)e,  there  can  be  no 
doubt  that,  like  similar  roads  in  other  parts  of  the  country, 
their  cars  will  he  loaded  with  freight  and  passengers.  But  it 
may  not  follow  that  the  Ohio  and  our  other  rivers  will  be  de- 
serted or  their  business  reduced.  We  have  an  extent  of  river 
coasts,  counting  both  shores,  exceeding  twenty-hve  thousand 
miles  through  countries  the  most  fertile  on  the  globe.  This  is  a 
greater  distance  than  the  combined  railways  of  the  world. 
That  our  railroads,  as  avenues  of  commerce,  may  develop  our 
resources  in  a greater  degree  than  is  now  anticipated,  must  be 
the  desire  of  every  one.  But  the  great  thoroughfares  pro- 
vided by  a beneficent  Providence,  should  neither  be  neglected 
nor  abandoned.  They  will  still  remain  the  great  arteries  of 
commerce.”  (13  How.,  *576.) 

“The  protection  of  the  river  commerce  is  by  no  means  lios- 
tile  to  any  other.  The  multiplication  of  commercial  facilities 
will,  in  the  same  pro|)ortion,  increase  the  articles  of  trade. 

“If  viaducts  must  be  thrown  over  the  Ohio  for  the  contem- 
plated railroads,  and  bridges  for  the  accommodation  of  the  nu- 
merous and  rising  cities  upon  the  banks  of  the  river,  it  is  of  the 
highest  importance  that  they  should  not  he  so  built  as  mate- 
rially to  obstruct  its  commerce.  If  the  obstructions  which  have 
been  demonstrated  to  result  from  the  Wheeling  Bridge  are  to 
l}e  multiplied  as  these  crossways  are  needed,  our  beautiful 
rivers  will,  in  a great  measure,  be  abandoned.  An  experience 
of  forty  years  shows  how  much  may  be  done  in  the  structure 
of  steamboats,  in  the  improvement  of  their  machinery,  and 


tlu‘  propell’m^i*’  power,  to  iiu'icviso  ili(‘  sixmmI  nnd  tli(‘  (‘oinroi‘1 
of  that  mode  ol*  transportation,  under  a ('ontiniKMl  r(*diu'tion 
of  expense.  I>nt  it  the  limit  of  advance,  in  this  resjxict,  has 
already  been  ])assed,  and  a retrograde  movement  is  necessai'v, 
hy  rejecting  the  imi)rovements  reeommemled  by  ingenuity  ancl 
experience,  we  close  our  eyes  to  one  great  sonn'e  of  oni*  pros- 
})erity.  What  would  the  AVest  now  have  l)een  if  steam  liad  not 
l)een  introduced  upou  our  rivers,  and  theii"  navigation  had  not 
remained  free!  AVithout  an  outlet  for  the  products  of  a })ro- 
lific  soil  and  tlie  instruments  of  mechanical  ingenuity,  the  coun- 
try could  have  made  but  little  advance.”  (13  How.,  *577.) 

The  size  of  boats  upon'  the  Ohio  in  1850  is  shown  by  the  report 
of  the  AA^heeling  Bridge  case.  The  largest  boat  on  the  Ohio  at  that 
time  was  the  Messenger. 

^‘The  Alessenger,  No.  2,  came  out  in  the  winter  or  spring  of 
1849,  was  242  feet  long,  and  has  chimneys  76  1-3  feet  high.” 
(13  How.,  *569.) 

It  gives  dimensions  of  seven  boats  200  feet  and  upwards  in 
length,  and  three  boats  less  than  85  feet  in  length ; and  as  to  these 
three,  states:  ‘‘They  were  all  of  much  larger  dimensions  and  had 
much  taller  chimneys  than  the  old  boats/’ 

The  smallest  dimension  given  is  that  of  the  Buckeye  State,  74 
feet  8 inches  in  length  (p.  *571). 

So  that  prior  to  1849  “old  boats”  that  were  undei*  74  feet  in 
length  were  the  order  of  the  day. 

In  Executive  Document  264,  Deport  of  Ckiptain  Alarsha!!,  1890, 
]).  118  (at  Abstract  ])]).  656-660),  are  given  lists  of  boats  recpiiring 
less  than  7 feet,  and  others  i-equiring  7 feet  and  upwards  in  de[)thy 
which  were  plying  on  the  Alississi])pi  Diver  and  its  trilmtaries, 
according  to  the  official  lists  which  were  })uhlished  in  1889. 

These  tables  give  the  names  of  33  boats  of  gi'eater  lengtli 
than  the  Messenger,  and  16  boats  which  wei'e  less  than  74  feet  in 
length;  the  shortest,  the  AVoodson  of  Alem])his,  being  only  42  feet 
long,  and  carrying  219  tons;  while  the  longest  was  304  feet  long, 
and  carried  1,122  tons. 

In  the  forty  years  between  the  building  of  the  Messengei'  and 
that  report  on  the  AA^oodson,  boats  of  high  capacity  and  tonnage 
had  develoi)ed,  which  were  only  half  as  large  as  the  Buckeye,  rmd. 


71^8 


on  the  other  liand,  l)oats  Arhieli  were  25  per  eerit  longer  than  the 
iMessenger. 

Blit  the  great  develojiinent  of  steamboat  eonstruction  was  in  the 
direetion  of  larger  boats.  Captain  Marsliall  in  liis  report,  page  7, 
speaks  of  lioats  300  feet  long  as  the  largest  ''since  the  loss  of  the 
great  cotton  carriers.” 

CHANGES  IN  THE  ART  OF  NAVIGATION. 

The  witness  Palmer  said: 

"In  the  manufacture  and  use  of  steam  vessels  from  the 
time  it  began,  it  grew  progressively  larger,  and  the  use  of 
'Steam  vessels  was  made  more  burdensome  in  the  United 
States,  by  having  steam  boiler  inspection,  a licensed  pilot  and 
a licensed  steam  engineer  examined  under  the  rules  of  the  Fed- 
ral  Grovernment.  These  burdens  did  not  apply  to  freight 
boats  below  50  feet.”  (Abst.,  pp.  318,  319.) 

The  Grand  Kepublic  was  burnt  at  St.  Louis  in  1877.  ("Gould’s 
Fifty  Years  on  the  Mississippi,”  E.  W.  Gould,  St.  Louis,  1889,  p. 
436.)  This  date  may  roughly  approximate  the  turning  point  in 
the  history  of  river  navigation. 

The  steam  towboat,  which,  though  small  in  dimensions,  is  great 
in  power,  came  in  at  this  time  as  the  giant  cotton  carriers  went  out, 
and,  carrying  no  passengers,  itself  a whole  fleet,  all  towing  barges, 
of  freight,  coal,  cotton,  iron  and  grain,  that  used  to  form  the  staple 
of  the  steamboat  traffic;  and  the  great  steamboat  disappeared. 
The  railroads  did  the  rest. 

Mark  Tivain,  the  most  celebrated  pilot  of  the  Mississippi  River, 
left  the  river  in  1861.  In  his  "Life  on  the  Mississippi,”  chapter 
22,  he  says : 

"After  21  years’  absence,  I felt  a very  strong  desire  to  see 
the  river  again,  and  the  steamboats.  j started  vrest- 

ward  about  the  middle  of  April  (p.  247).” 

He  described  what  he  found  at  St.  Louis  in  1882  thus : 

"But  the  change  of  changes  was  on  the  'levee.’  This  time  a 
departure  from  the  rule.  Half  a dozen  sound-asleep  steam- 
boats, where  I used  to  see  a solid  mile  of  wide-awake  ones. 
* * * Half  a dozen  lifeless  steamboats,  a mile  of  empty 

wharves,  a negro  fatigued  with  whiskey,  stretched  asleep  in  a 
wide  and  soundless  vacancy,  where  the  serried  hosts  of  com- 
merce used  to  contend. 


729 


“('a])taiii  Mai-yal,  wialiii^’  45  yeai'S  a^o  (i.  (*.,  in  18^)74)), 
says:  ‘St.  Louis  has  20, ()()()  inhabitants.  44io  ]‘!V(‘r  ahi-(iast 
ot*  tho  town  is  crowded  w-itlL  steanilioats,  lying  in  two  or  thiaMi 
tiers.  ’ 

“Tlie  towboat  and  the  railroad  had  done  their  work,  and 
done  it  well  and  completely.  The  mighty  bridge,  stretching 
along  over  our  heads,  had  done  its  share  in  the  slaughter  ami 
spoliation.  Eemains  of  former  steamhoatmen  told  me,  with 
wan  satisfaction,  that  the  bridge  doesn’t  pay.  Still,  it  can  be 
no  sufficient  compensation  to  a corpse  to  know  that  the  dyna- 
mite that  had  laid  him  out  was  not  of  as  good  quality  as  it  liad 
been  supposed  to  be.  * * * 

^^Mississippi  steamboating  was  born  about  1812;  at  the  end 
of  thirty  years  it  had  grown  to  mighty  proportions;  and  in 
less  than  thirty  more  it  was  dead.  A strangely  short  life  for 
so  majestic  a creature.  Of  course  it  is  not  absolutely  dead; 
neither  is  a crippled  octogenarian  who  could  once  jump  twen- 
ty-two feet  on  level  ground;  but  as  contrasted  wuth  what  it  was 
in  its  prime  vigor,  Mississippi  steamboating  may  be  called 
dead. 

^Mt  killed  the  old-fashioned  keel-boating,  by  reducing  the 
freight  trip  to  New  Orleans  to  less  than  a week.  The  railroads 
have  killed  the  steamboat  passenger  traffic  by  doing  in  two  or 
three  days  what  the  steamboats  consumed  a week  in  doing; 
and  the  to  wing- fleets  have  killed  the  through-fi*eight  traffic  by 
dragging  six  or  seven  steamer-loads  of  stuff  down  the  river 
at  a time,  at  an  expense  so  trivial  that  stemboat  competition 
was  out  of  the  question. 

“Freight  and  passenger  way-traffic  remains  to  the  steam- 
ers. This  is  in  the  hands — along  the  two  thousands  miles  of 
river  between  St.  Paul  and  New  Orleans — of  two  or  three 
close  corporations  well  fortified  with  capital ; and  by  a])le  and 
thoroughly  business-like  management  and  system,  these  make 
a sufficiency  of  money  out  of  what  is  left  of  the  once  pro- 
digious steamboating  industry.”  (Mark  Twain’s  “ Life  on  the 
Mississippi,”  pp.  254-5-6-7.) 

The  forebodings  of  Mr.  Justice  McLeax,  as  to  the  effect  of  rail- 
road bridges  were  justified. 

Kail  road  bridges  have  done  much  to  interfere  with  river  naviga- 
tion, but  they  have  not  deprived  the  public  of  the  public  right  of 
way  along  these  highways  of  nature. 

People  v.  Gutchess,  48  Barb.,  656. 

There  the  Chancellor  said : 

“The  court  found  that  the  river  had  been  declared  a ])ublic 
highway  by  the  Act  of  the  Legislature  in  1813 ; and  in  the  early 


seitleiiioiit  of  tlie  country  was  occasionally  navigated  in  sea- 
sons of  high  water  l)y  rafts  and  boats  of  small  size;  hut  that 
it  had  not  been  navigated  for  many  years  and  is  not  now  a 
navigable  stream.  That  tliere  are  already  erected 

and  in  use  12  bridges  across  the  river,  with  tiie  average  dis- 
taiK'e  of  about  three  miles  from  each  other.  * * * j think 

1 can  not  give  any  force  to  this  report  as  against  the  State,  and 
T can  not  overlook  the  fact  that  the  Legislature  has  asserted 
for  tlie  State  the  right  to  control  the  said  river,  and  has  ex- 
])ressly  declared  it  to  be  a imblic  highway,  by  a jmblic  Act ; and 
that  the  bridges  aforesaid  erected  over  the  said  river  have 
been  so  erected  upon  leave  or  licenses  from  the  State.  The 
State  lias,  therefore,  the  unquestionable  right  to  control  the 
use  of  the  Ohio  and  prevent  the  erection  or  creation  of  any 
bridges  or  dams,  or  other  works  tiiat  will  obstruct  the  free  use 
of  the  same  as  a public  highway.” 


The  change  which  had  become  so  great  by  1882  was  destined  to 
continue.  Tn  the  Special  Reports  of  the  Census  Office,  Transpor- 
tation by  Water,  1906,”  p.  33,  a comparative  statement  is  given  of 
the  freight  transportation  for  the  years  1906  and  1889.  The  fig- 
ures are  as  follows: 


Missis'sippi  River  and  its  tributaries 1906 

Mississippi  River  and  its  triliutaries 1889 

All  other  inland  waters 1906 

All  other  inland  waters 1889 


FrT  carried  Per  cent 
Census.  (net  tons)  of  total 
27,856641  10.5 

29,101,409  22.6 

3,944,655  1.5 

11,221,224  8.6 


Plainly  river  commerce  has  been  steadily  declining.  ‘‘Steam- 
boats make  the  rates  and  the  railroads  get  the  freights”  was  the 
catch-word  of  Mississippi  Valley  traffic  in  the  70 ’s,  when  the  steam- 
boats were  i^assing. 


If,  now,  pecuniary  profit  were  the  test  of  navigability,  these  fig- 
ures would  demonstrate  that  the  Mississippi  River  was  not  navi- 
gable, and  that  all  other  inland  waters  of  the  United  States  are  not 
navigable. 


This  is  a typical  case  of  reductio  ad  absurdum.  The  contention 
that  river  traffic  must  profitably  compete  with  railways  in  order 
that  the  river  be  navigable  is  plainly  absurd. 

It  may  be  suitable  for  the  River  and  Harbor  Appropriation 
Committee  of  Congress  to  insist  that  before  they  will  recommend 
the  expenditure  of  public  money  upon  a stream,  they  must  see  a 


])ros{)(H‘t  of  siu'li  i)roHial)lo  (‘oinpotiiioii.  (And  jud^xnl  (;ven  by  this 
standard,  iMr.  I’urton  insists  that  the  Dos  Idaines  ITiver  is  n'avi^>a- 
l)ie.  (Absl,,  ]).  1S7.)  I^nt  tlie  figures  (pioted  fi'oni  the  eensns,  of 
the  obvious  fact,  patent  to  all  observers,  wliieh  is  so  graph ieally 
stated  by  Mark  Twain,  deinonstrate  that  during  tlie  past  genera- 
tion, inland  water  transportation  in  the  United  States  has  not 
maintained  itself  in  competition  with  the  railways.  Is  tliere,  then, 
no  navigable  stream  left  in  America!  On  the  contrary,  the  defini- 
tion wliich  leads  to  such  result  is  not  the  definition  of  the  law,  nor 
the  measure  of  public  right.  'Streams  which  were  navigable  once, 
and  recognized  as  such  by  law,  remain  navigable;  and  even  the 
Sovereign  State  can  not  alienate  or  surrender  the  rights  of  the 
public  therein. 

(See  authorities  cited  under  proposition  ‘^The  Public 
Eight  is  Non-alienable,’^  of  this  brief.) 

RECENT  DEVELOPMENT THE  FREIGHT  LAUNCH  AND  MOTOR.  BOAT. 

The  most  recent  develoi)ment  is  in  the  opposite  direction.  The 
steamboats  had  grown  larger  and  larger,  and  more  and  more  bur- 
dened by  inspection  requirements,  i)ilot  and  engineer’s  licenses, 
and  by  the  amount  of  fuel  necessary  to  be  carried  for  their  0})8ra- 
tion,  until  they  passed  the  maximum  point  in  size,  at  which  they 
could  be  profitably  operated. 

Then  came  the  towing  fleet,  to  which  we  have  i*ef erred.  Tlie 
next  step  was  the  freight  launch  and  motor  boat.  This  develop 
ment  is  descrilied  in  the  evidence  by  the  witnesses  {^almer,  Swee- 
ney and  Fox. 

Mr.  Palmej*,  of  tlie  Racine  Boat  Manufacduring  Com])any,  states 
that  the  modern  launch  had  been  in  use  in  the  Mississippi  Valley 
since  about  1890,  and  the  modern  motor  boat  since  about  I90T 

^‘The  launches  to  wdiich  1 have  referred  were  in  use  as 
freight  boats.  The  construction  of  the  launch  generally  for 
freight  purposes  would  be  a boat  say  about  25  feet  long  by  (i 
to  8 feet  beam,  built  heavy,  and  with  a gasoline  engine  of  from 
5 horsepower  to  10,  varying  according  to  the  current  that  they 
wished  to  go  against  and  the  work  they  have  to  do;  and  those 
would  be  the  smallest,  from  that  on  up  to  larger  sizes — up  to 
100  feet  long  and  say  from  17  to  20  feet  beam. 

‘‘To  find  the  tonnage  that  a boat  would  carry,  you  multiply 
the  length  of  the  boat  by  the  beam  and  hy  the  de])th  of  the  hull 


and  (livdde  })y  95.  .A  lioat  100  feet  long’,  20  feet  wide  and  2 feet 
deep,  by  this  forinnla,  would  carry  42  tons.  It  would  carry  that 
load  in  addition  to  its  m-acliinery  and  gasoline  by  which  it  is 
opei’ated,  and  the  crew.  That  boat  would  be  a little  out  of 
proportion.  Tlie  liull  should  be  at  least  6 or  8 feet  deep,  and 
still  draw  2 feet  of  water,  and  travel  on  2 feet  of  water,  so  that 
you  got  to  figure  on  its  carrying  more  tonnage. 

‘‘The  tunnel  boat  has  a dome  or  semi-cylinder,  built  up  into 
the  hull,  in  which  the  propeller  operates.  AVhen  the  boat  is 
stationary,  the  propeller  is  half  out  of  the  water.  As  soon  as 
the  propeller  is  started  up  with  the  machinery,  it  lifts  the 
water  and  fills  the  dome  and  then  acts  the  same  as  if  the  screw 
were  so  many  inches  under  water.  For  instance,  if  you  had 
a 20-inch  screw  stationary,  the  propeller  would  only  draw  10 
inches  of  water,  but  as  soon  as  the  motion  begins  this  cavity 
is  filled  with  water,  and  she  goes  the  same  as  if  the  propeller 
was  more  than  20  inches  under  water. 

Those  are  a line  of  shallow  draft  boats,  and  they  were 
first  built  in  England  for  use  on  the  Kiver  Nile.  We  intro- 
duced it  in  this  country  prior  to  the  World’s  Fair.  I am  man- 
ufacturing boats  of  that  type  now.  These  freight  launches  and 
boats  are  in  use  all  over  the  country  on  rivers  and  lakes,  espe- 
cially on  the  smaller  rivers  of  the  country  and  on  canals. 

‘‘Eelative  to  the  manufacture  of  steam  vessels — from  the 
time  that  the  freight  launches  came  in,  the  small  gasoline 
boats  have  had  the  greater  increase  in  use  at  the  ratio,  I should 
say,  of  pretty  near  100  to  1. 

u*  «=  * burden  of  the  machinery  and  fuel  to  be  car- 

ried in  the  motor  freight  launch,  I don’t  think,  takes  up  20  per 
cent  as  much  room  as  steam.  There  would  be  a net  saving  of 
80  per  cent,  relatively,  on  the  items  of  machinery  and  fuel  to 
carry.  With  the  coming  in  of  the  freight  launch  and  motor 
])oat,  there  has  been  a decided  increase  in  the  amount  of  navi- 
gation and  comiinerce  carried  on  the  internal  smaller  waters 
and  streams.  Gasoline  engines  have  been  adopted  by  a great 
many  canal  boats  through  the  country,  that  have  taken  out 
steam,  and  also  they  have  taken  out  steam  from  some  of  the 
smaller  freight  boats  and  installed  gasoline  on  the  rivers.” 
(Abst.,  pp.  316-319.) 

On  this  ‘‘Eecent  Development  of  Navigation”  John  M.  Sweeney 
testified : 

‘•My  business  is  mechanical  marine  engineering.  I am  in- 
terested in  the  Outing  Boat  Company  of  Chicago,  who  Iniild 
motor  boats ; in  the  Howard  Ship  Building  Company  at  Jetfer- 
sonville,  Indiana,  and  in  some  allied  properties  with  that  con- 
cern, and  some  repair  plants  on  the  Ohio  Eiver.  I have  been 
building  river  boats  particularly  since  about  1876. 


( .).> 


“''riio  strictly  ii{i})liitlia  launch  was  used  })c^inriin^'  al)out 
1880.  The  iuterual  coiuhustiou  motor  came  iii  about  s(;v(m 
years  ago.  The  first  exliibit  in  Cliicago  was  in  1900,  })y  a De- 
troit firm.  From  that  time  to  tlie  present  time  tlie  internal 
combustion  motor  has  multiplied  very  fast.  Within  that 
eight-year  period  the  number  of  internal  coml)ustion  motor 
boats  in  use — on  the  best  data  that  is  perhaps  availa])le,  or  ol)- 
tainable — reaches  about  200,000.  There  are  about  200,000  of 
them  now.  They  are  used  for  all  purposes. 

^‘The  inspection  law  draws  a line  between  boats  of  fifteen 
tons  or  under  that.  Boats  of  over  fifteen  tons  require  inspec- 
tion and  licensed  officers ; boats  below  fifteen  tons  do  not,  un- 
less they  are  used  for  purposes  of  hire  or  carrying  passengers 
for  hire. 

‘^The  old-fashioned  steamboats  which  were  in  use  in  1880 
required  a licensed  pilot  and  a licensed  engineer,  as  well  as  in- 
spection of  the  steam  boilers,  where  they  came  under  the  in- 
spection service.  The  test  which  brought  them  within  the  in- 
spection service  was  ^a  boat  propelled,  in  whole  or  in  part,  by 
steam,  operated  on  navigable  waters  of  the  United  States,’ 
Recently  that  language  has  been  construed  to  mean  that  any 
boat  propelled  by  motor  of  any  kind,  shall  be  construed  as  pro- 
pelled by  steam.  My  impression  is  that  that  is  an  edict  of  the 
Department.  I do  not  think  it  is  in  the  form  of  a statute,  as 
yet,  but  they  are  trying  very  hard  to  get  it  there. 

i 4 Prior  to  the  making  of  this  ruling,  a motor  Imat  did  not 
need  to  have  a licensed  engineer,  under  the  navigation  law, 
because  the  law  applied  to  those  boats  that  Svere  proj^elled  in 
whole  or  in  part  by  steam.’  The  boats  that  were  ])roi)elled  by 
internal  combustion  or  gasoline  are  not  steam  vessels.  They 
do  not  use  steam  at  all. 

‘‘The  cost  of  inspection  itself  was  not  burdensome,  but  the 
growing  requirements  of  the  Bureau  as  to  outfit  and  as  to  the 
numerous  life-saving  apparatus  and  life  boats,  as  applied  to 
the  licensing  for  instance,  to  a certain  extent  as  applied  to 
boats  navigating  shallow  streams,  has  been  a great  factor  in 
diminishing  the  use  of  steamboats  in  those  streams.  These 
burdens  have  not,  up  until  this  time,  been  applied  to  motor 
boats  and  gasoline  craft.  I think  they  will  from  this  time  on, 
perhaps. 

“Well,  speaking  of  the  last  four  or  five  years,  which  is  the 
best  pulse  of  what  has  been  taking  place  on  the  Ohio  River,  I 
should  say,  roughly,  without  having  statistics,  but  simply  as  a 
matter  of  observation,  that  there  have  been  four  or  five,  some 
small,  gasoline  or  internal  combustion  boats  built  and  imt  in 
commission  to  one  steam-driven  craft,  and  the  Ohio  River  to- 
day is  developing  an  awful  big  business  along  its  shores  l)y 
the  use  of  gasoline  boats  towing  very  light  barges  that  can  be 


left  at  one  spot  or  another,  and  in  that  way  tliey  use  very  mueli 
smaller  fuel  than  a steamboat  could  use.  The  savin^i^  in  the 
motor  of  carrying  heavy  machinery  and  fuel  enables  these 
motor  craft  to  operate  shallower  waters,  and  they  are  lighter 
boats,  too,  generally,  lighter  draft  l)oats. 

have  never  Imilt  any  l)oats  for  the  Chattahooclie  that 
wei'e  smaller  than  loO  feet  by  about  26  or  28  feet  wide.  These 
boats  would  draw,  without  any  load  in  tliem,  about  20  or  22 
inches.  Not  evenly,  all  over,  l)ecause‘a  boat  of  that  type,  if 
she  is  drawdng  22  inches  at  iier  stern,  she  would  probably  draw 
18  inclies  forward.  A boat  of  that  kind,  where  you  are  carry- 
ing cotton  down  tlie  Chattahooclie  Eiver,  would  be  loaded 
deep  in  the  vessel,  so  if  the  bow  was  very  much  deeper,  would 
be  loaded  to  about  five  feet.  A boat  of  that  character  would 
carry  probably  150  tons. 

^^To  describe  in  the  normal  construction  as  to  length  and 
breadth  and  depth  of  hull,  as  distinguished  from  the  draft  of 
the  water,  a boat  carrying  50  tons,  independent  of  weight, 
would  be  probably  100  feet  long  by  20  feet  beam — I am  speak- 
ing of  a steamboat  now — she  would  draw,  without  any  load  in 
her  whatever,  about  18  inches — from  12  to  18  inches,  depend- 
ing upon  how  much  passenger  accommodation.  If  no  passen- 
ger accommodation,  12  inches.  It  would  be  possible  to  con- 
struct that  boat  on  a 12-inch  draft,  and  a boat  of  that  dimen- 
sion would  carry,  for  each  fool  of  displacement,  50  or  60  tons, 
50  tons,  anyway. 

^^I  do  not  know  of  any  boats  as  large  as  100  by  20  feet,  gaso- 
line driven,  that  have  been  put  in  commission,  but  I was  on  a 
boat  the  other  day  which  was  85  feet  long  and  15  feet  wide, 
that  was  drawing  light,  about  10  inches  at  the  deepest  end  of 
it,  and  her  average  displacement  was  probably  8 inches ; aver- 
age draft,  I mean.  That  boat  would  carry,  exclusive  of  her 
own  weight,  about  30  tons  to  the  foot ; I mean  30  tons  to  the 
foot  of  displacement;  to  the  foot  of  immersion;  each  foot  of 
loading.  As  I say,  that  is  only  approximate,  because  I have 
used  60  pounds  as  the  weight  of  a cubic  foot  of  water.  It  is 
really  more  than  that.  If  the  boat  is  85  by  15,  there  would  be 
7,500  cubic  feet  of  displaceiaent  for  each  foot  of  immersion, 
wliich  in  round  numbers  is  371  tons,  call  it  35  tons.  That  boat 
on  two  feet  of  water  would  carry  30  tons ; more  than  that,  a 
little,  I judge. 

“IVith  the  incoming  of  these  internal  combustion  motors, 
commercial  navigation  upon  the  shallow  draft  stream  of  the 
interior  has  increased  undoubtedly,  particularly  if  pleasure 
purposes  are  included.  They  are  also  used  for  commercial 
purposes.  I know  fhat  the  steam  boat  men  on  the  Ohio  River 
are  kicking  a wdiole  lot  about  them  getting  into  the  short 
trade.  The  expense  of  operation,  as  compared  with  steam  ves- 


sols  is  porliaps  loss,  ('oiisidoriiig*  llio  adapiahilily,  and  I doiiht 
vory  iniK'li  wliotlior  tlio  fiiol  o()iisuin})ti()a  itsolf  is  loss.  I tliird< 
ilio  I’aol  (‘onsiiiniption  is  in  favor  still  of  tlio  stoain  ('raft. 

“ddio  installation  ('ost  on  a rtiotor  boat,  in  sniall  sizes,  oan- 
not  1)0  ooinparod  with  the  instalhition  (M)st  on  a steam  l>oat, 
hoeaiise  a motor  boat  is  available  where  the  steam  would  not 
be,  and  I think  the  converse  of  tliat  ])roi)osition  is  true,  but 
on  the  very  large  sizes  the  steam  installation  is  the  only  avail- 
able one.  It  is  the  middle  field  in  which  you  can  make  com- 
})arison  of  the  cost  of  installation.  A motor  boat  could  be  in- 
stalled on  sh.allow  water,  where  it  would  not  be  x>ossi])le  to 
install  a steam  vessel.  There  is  a formula  for  computing  tlie 
displacement  necessary  to  a given  load  on  a shallow  draft 
stream. 

‘‘Assuming  that  a cubic  foot  of  water  weighs  60  |30unds,  as 
the  value  which  is  used  in  tins  calculation  which  I made  here  a 
little  bit  ago,  after  the  boat  had  furnislied  its  own  buoyancy — 
provided  for  its  own  buoyancy,  or  its  own  displacement— each 
cubic  foot  of  water  that  was  dis^fiaced  further  by 
further  immersion,  would  mean  60  pounds  of  carry- 
ing capacity.  If  the  cross-section  of  the  boat,  or  the 
cubic  displacement  of  a boat  for  each  inch  or  each 
foot  is  known  in  cubic  feet  and  cubic  inches,  it  is  a little 
mathematical  problem  to  work  that  out.  If  you  multi]fiy  the 
length  by  the  breadth  and  then  by  the  depth  making  cubic 
contents,  and  multixrly  it  by  60  pounds  for  each  cubic  foot,  it 
gives  you  the  weight  of  the  water  displaced  by  that  much  im- 
mersion. That  causes  that  iniicli  additional  immersion;  or  to 
find  the  reverse  proposition,  the  amount  of  the  boat  displaced 
would  give  you  the  weight  of  the  boat  itself,  without  the  load. 

“If  the  boat  had  two  water  lines,  one  where  it  was  empty, 
and  one  near  where  it  was  higher,  where  it  was  loaded,  the 
length  by  tlie  l)readth  multiplied  ])y  60  would  give  you  the 
number  of  |)ounds  or  load  that  would  be  represented  })y  the 
additional  foot  of  immersion. 

“A  tnnnel-bnilt  ])oat,  is  a term  that  is  applied  ])inmarily  to 
a,  boat  designed  by  Thorneycr*oft  in  Kngland,  for  the  purpose 
of  applying  a pi*o|)eiler  wheel,  so  that  it  would  not  exteml  lye- 
low  the  bottom  of  the  boat.  It  was  first  done  for  some  of  the 
very  shallow  draft  boats  which  Thorney(*roft  and  Yarrow,  and 
other  Englisli  firms,  built  for  African  rivers,  such  as  the  Nile 
and  Zambese.  Some  of  these  l)oats,  which  were  called  ‘Mos- 
quito’ boats  were  as  light  as  8 inches. 

“They  would  carry  a great  deal  of  freight.  They  are  a 
very  large,  wide  l)oat.  In  place  of  having  a pro}>elier  wheel 
extend  below  the  bottom  of  the  boat,  it  would  set  up.  The 
stern  of  a boat  lyuilt  with  a tunnel  in  it,  so  that  the  water  would 
rise  as  the  boat  went  along,  the  water  being  nnder  compression, 


iiiidoi*  the  l)()ttoin  of  the  l)()a't,  would  rise  into  the  tunnel  eorn- 
partnuMit  and  g'ive  the  wheel  water  to  aet  upon.  It  was  ymt 
ihei'e  so  that  the  })oat  eould  |)ass  over  ])laees  without  injury 
to  the  wheel,  wliere  she  ('ould  ))e  floaited.  It  lias  ])een  applied 
for  use  on  shallow  streanis. 

‘‘Thei-e  liave  l)eeir  two  boats  of  tliat  eliaraeter  l)uilt  for  the 
Ohio  River.  One  is  owned  by  the  government,  towing  barges, 
ddiey  are  Twin  Sister  l)oats.  Tlie  other  boat  is  just  completed, 
not  ill  eommis'sion  yet. 

''  In  ease  of  the  tow  l)oat,  tliey  carry  no  load  exceiit  their 
own  fuel,  but  they  are  loaded  to  the  capacity  of  the  river,  at 
certain  times  at  least,  with  fuel  so  as  to  carry  the  maximum 
of  the  barges  which  they  tow. 

"In  connection  with  the  Missouri  liiver,  I have  just  com- 
])leted  designs  for  a cou})le  of  steam  boats  upon  the  ^Missouri 
Eiver  to  be  used  between  Kansas  City  and  St.  Louis.  The 
estimate  of  the  draft  of  these  vessels  will  not  exceed  22  inches 
at  the  stern,  and  18  inches  forward,  for  the  light  draft,  carry- 
ing a displacement  of  practically  500  tons.  The  boats  them- 
selves are  240  feet  long  and  44  feet  wide,  and  the  boat  will 
carry  on  her  maxinmm  load  draft,  which  would  be  8 feet  for- 
ward and  4 feet  aft,  1,200  tons,  in  addition  to  the  weight  of 
the  boat  itself.  ^ ^ * 

"The  boat  loaded  should  be  deep  at  the  head,  and  in  the  flat 
stern  boat,  particularly,  the  scheme  is  to  (drawing  diagram) 
that  being  the  water  line,  this  is  the  top  of  the  boat.  Now, 
assuming  that  the  bottom,  as  is  shown  there,  is  ])arallel  with 
the  top  of  the  water,  the  wheel  is  above  the  bottom.  That  is 
the  practice  of  the  company  I am  engineer  of  in  building  motor 
boats. 

# * * , * * # 

"I  do  not  mean  to  say  that  all  boats  are  constructed  in  that 
way,  but  that  is  the  favorite  construction  today,  in  what  is 
known  as  the  'Torpedo’  stern  boat.  That  is  the  construction 
used  very  largely  for  commercial  purposes.  It  is  the  change, 
and  it  is  really  the  recent  development  of  all  there  is  in  boat 
construction,  that  when  the  boat  is  being  propelled  the  stern  of 
the  boat  does  not  settle. 

"The  wheel  is  always  immersed  to  its  full  depth  approxi- 
mately, so  it  may  have  a little  greater  depth  than  that  when 
the  stern  is  loaded  under,  but  the  loading  always  intensifies 
that  forward  movement  where  the  boat  is.” 

(Trans,  pp.  592-600.)  (Abst.  pp.  320-326.) 

On  the  same  subject  witness  Fox  testified,  as  follows: 

"I  am  engaged  in  the  manufacture  of  paper.  Wyoming  is 
located  in  the  County  of  Hamilton,  about  twelve  miles  nortb 
of  tlic  City  of  Cincinnati.  The  name  of  the  business  coiu'ci'ii 


is  known  as  Fox  Paper  Oonipany.  The  mill  is  lo('ate<l  in 
Loekland  ancl  is  adjacent  to  the  Village  of  Wyoming,  through 
whi(‘h  the  Miami  & Frie  (kinal,  that  runs  from  the  Oliio  Itiver 
to  Lake  Fjrie,  runs.  We  make  use  in  our  business  of  this 
('anal  in  the  transportation  of  raw  material  to  the  mills  and 
of  tlie  finished  product  from  the  mills.  There  are  four  of 
our  mills  that  are  located  on  the  hanks  of  the  Miami  Canal. 
The  canal  is  one  of  the  principal  means  of  transportation  hy 
which  raw  materials  are  brought  in  and  the  product  (tarried 
out  from  the  mills.  I became  interested  in  these  mills  in  the 
year  1868  and  have  conitinued  operating  them  ever  since,  then 
continuously  since  1868.  I have  been  making  use  of  this 
waterway  to  get  into  the  Ohio  Elver  for  transportation.  Steam 
was  used  as  a method  of  operating  canal  boats  on  that  canal 
on  perhaps  three  or  four  occasions  by  other  parties  and  my- 
self since  that  time,  all  of  which,  however,  proved  to  be  a 
failure.  * * * 

learned  of  a new  method  of  propulsion,  sought  the 
patentee  and  arranged  with  him  for  the  use  of  his  method 
along  the  canal  from  Dayton  to  Cincinnati.  That  method  was 
known  as  the  Coen  System  of  Propulsion. 

^ Wn  opening  is  cut  into  the  bottom  of  the  boat  of  the  size, 
we  judge,  30  inches  wide  and  about  22  feet  long.  Over  this 
opening  we  construct  a magazine  that  was  30  inches  in  the 
center  and  30  inches  wide.  From  the  high  point  it  proceeded 
down  to  the  bottom  of  the  boat,  at  the  ends  it  is  a semi- 
cylinder placed  at  an  incline  at  the  bottom  of  the  boat,  in 
the  center  of  which  cylinder  we  placed  a 28-inch  wall  with 
three  flukes,  ordinary  propulsion  wall,  and  to  operate  it  had  a 
gasoline  engine  from  the  outside  with  a shaft  running  through 
the  shelf  with  the  ordinary  modern  combustion  gasoline  motor. 

‘‘That  first  boat  was  constructed  and  built  in  the  summer  of 
1903  or  1904.  I have  been  using  boats  of  that  type  in  the 
transportaition  of  the  raw  material  in  and  of  the  finished 
product  out  of  my  factory  from  that  time  to  this.  The  boat 
represented  in  Fox  Exhibit  No.  1 had  a capacity  of  from  50 
to  60  tons.  The  horse  power  in  this  boat  was  14  horse  power. 

“Mdien  there  was  10  inches  of  water  in  the  canal  we  could 
operate  the  boat.  The  draught  of  the  boat  when  it  is  not 
loaded  is  about  9 or  94  inches.  One  of  the  objects  of  the  maga- 
zine or  tunnel  in  the  bottom  of  the  boat  is  to  enable  the  pro- 
pelling wall  to  operate  without  making  a requirement  of  addi- 
tional depth  of  water  with  the  wall  itself.  Some  of  the 
other  objects  are  to  avoid  striking  a rock  or  boulder  or  a tow 
line  back  and  forth  in  the  shallow  water  of  the  canal,  and  if 
tlie  wall  is  about  to  hit  the  hank  or  strike  some  obstacle  and 
the  wall  being  up  in  the  magazine  is  far  from  any  object  of 
that  kind,  and  we  never  have  had  any  trouble  excepting  when  a 


iiiiiher  or  soinotliini*'  that  the  boat  would  fasten  that  would  he 
held  ill  tlie  ground  and  would  fly  up.  The  uiagazine  would 
not  keep  the  boat  fi-oiu  striking  <tlie  obstruetioirs  but  would 
keep  the  wheel  from  sti*ikiug  obstiaictions. 

‘‘d^he  length  of  the  lioat  rejiresented  in  Fox  Exhibit  No.  1 
is  cHO  feet.  Those  we  built  later,  T tliink,  were  81  feet  and  the 
hreadtli  was  lUl  feet.  We  liad  tliein  Iniilt  some  were  three 
some  were  four  feet  high,  tlie  hold,  and  others  were  4],  and  I 
think  we  had  one  built  five  feet  high.  These  boats  that  were 
built  five  feet  high  could  all  of  them  operate  on  10  inches  of 

watei*.  The  actual  displacement  of  them  was  9 or  94  inches. 

* # * 

‘‘I  may  say  that  this  boat  was  one  that  I had  built  in  Buf- 
falo about  twenty  years  prior  to  the  time  that  the  method  of 
propulsion  was  put  in  this  boat.  We  had  been  operating  it 
for  about  twenty  years  when  the  new  magazine  propeller  was 
put  in  in  1904.  The  boat  was  first  built  in  Buffalo  in  1884 
and  the  type  was  that  of  boats  in  use  on  the  Erie  Canal.  * * 

‘‘We  are  continuously  operating  these  eight  boats'  from 
Lockland  to  Cincinnati.  * * * 

“We  found  that  when  we  put  the  boat  in  the  dock  and  the 
machinery  in  stall  that  when  the  water  came  into  the  dock  air 
prevented  the  opening  to  be  filled  with  water,  so  that  it  was  a 
mass  of  air  in  the  air  chamber  instead  of  water  and  the  wheel 
turns  around  without  even  striking  water.  The  advantage  of 
the  system  is  that  we  have  a little  air  pump  and  we  extract 
air  from  the  magazine,  pump  it  out  and  water  fills  up  in  a 
column  about  six  or  eight  feet  high,  which  the  inventor  claims 
gives  us  a pressure  of  six  or  eight  feet  of  water  on  top  of  the 
wheel. 

“At  any  rate  we  had  the  wheel  submerged  and  the  force  to 
throw  the  boat  in  four  inches  of  water  we  could  have  an  eight 
foot  pressure  according  to  the  claims  of  the  inventor,  and  I 
don’t  see  why  his  claim  is  not  correct.  It  has  proven  a prac- 
ticable commercial  method  of  operating  freight  boats  for  the 
transportation  of  freight  to  and  from  my  factory.  It  is  much 
more  practicable  than  the  mule  principle  and  much  more  de- 
sirable to  operate.  We  get  better  hands  to  work  them  and  if 
a stream  comes  or  the  trip  is  completed  that  boat  is  tied  up 
and  we  have  not  a lot  of  tired  or  sick  mules  to  take  care  of  or 
tow  lines  to  buy,  and  it  ends. 

“Since  the  operation  of  these  boats  the  railroad  people 
have  started  to  bump  up  against  us  pretty  strong  and  they 
have  since  that  time  made  a rate  of  $5.00  a car  into  the  city 
when  they  used  to  charge  about  $30.00.  We  ship  our  stuff  by 
rail  at  $5.00  a car  when  we  have  a carload,  but  when  we  have 
less  than  a carload  we  take  it  by  these  boats  for  perhaps  less 
than  half  of  what  they  would  charge  for  less  than  car  lots. 


This  $5.00  rate  has  taken  the  place  of  the  $50. 00  rate,  wliicli  was 
in  for(*e  until  wo  installed  this  system  of  internal  combustion 
motoi*  boats,  and  their  object  and  use  is  entirely  the  trans- 
portation of  frei^lit.  We  liave  no  other  nse  for  them  and  they 
are  in  continuous  use.” 

(Abst.  pp.  330-384.)  (Trans,  pp.  019-631.) 

PATENT  TUNNEL  BOAT  EXHIBIT. 

App.,  p.  3891 — C.  E.,  p.  810. 

‘‘This  is  a copy  from  the  II.  S.  Patent  Office  of  U.  S.  Patent 
No.  733,010.  This  is  known  as  the  ‘Coen  Patent.’ 

“The  object  of  this  invention  is  to  provide  for  the  absolute 
immersion  of  a propellor  wheel  of  abnormal  proportions  as 
compared  with  the  depth  of  water  wherein  the  said  wheel  is 
to  work,  so  as  to  secure  the  propulsive  effects  or  relative 
benefits  of  a comparatively  large  propeller  wheel  in  places 
where  only  light  draft  vessels  can  be  used. 

“The  end  to  ^hich  I aim  is  attained  by  first  inclosing  the 
wheel  within  the  body  of  the  vessel,  as  hereinafter  shown,  so 
that  the  water  can  reach  the  said  chamber  from  forward  and 
discharge  from  the  after  portion  of  the  chamber  from  the 
action  of  the  wheel.  * * * 

“My  final  object  is  to  produce  here  a complete  propelling 
apparatus  which  can  be  easily  adjusted  to  light-draft  vessels 
wherein  the  screw  propeller  could  not  be  used,  as  ordinarily 
employed  in  vessels,  and  thereby  make  serviceable  as  inde- 
pendent carriers  many  boats  which  have  to  be  towed  by  other 
vessels  at  the  present  time.  * * * 

“In  this  connection  it  should  here  be  stated  that  the  ap- 
paratus herein  described  is  to  be  of  such  an  adjustable  nature 
as  to  admit  of  being  placed  in  various  forms  of  vessels  with 
no  more  change  than  may  be  found  necessary  in  the  making 
of  the  bottom  walls  of  the  main  chamber  to  fit  and  fasten  to 
the  floor  of  the  vessel  by  means  of  flanges  herein  provided. 

“In  the  drawings,  A represents  an  oblong  bottomless  cham- 
ber with  arched  top,  in  which  is  an  opening  leading  to  vertical 
chamber  B,  which  is  in  turn  suyiplied  with  a valve  C at  its  top, 
as  shown.  This  latter  chamber  I have  designated  as  tlie 
‘vacuum  chamber,’  because  when  in  operation  a vacuum  or 
partial  vacuum  is  maintained  at  the  upper  portion  thereof  in 
order  to  raise  the  Water  therein  to  a sufficnent  height  to  insure 
perfect  immersion  of  the  propeller  wheel  1),  which  operates  in 
chamber  A from  rotary  motion  imparted  to  it  by  shaft  E and 
connections,  as  hereinafter  described.” 

(Abst.,  pp.  1725-6-7.)  (Trans.,  p.  5860.) 


740 


The  (lefeiidaiit’s  expert  Avitiiesses,  Pryor  and  AIcCullough,  both 
testified  as  to  these  small  boats  propelled  by  gasoline. 

^[(Thdlongli  said: 

^‘The  only  small  boat  I have  had  an}-  experience  with  was 
tlie  small' gasoline  boat,  which  would,  in  my  judgment  carry 
less  than  8 tons.  I took  the  boat  to  Memphis,  with  a small 
])arty  a year  ago  this  spring.  * * * j have  seen  a great 

many  boats  used  in  commercial  navigation  that  were  only  capa- 
ble of  carrying  about  ten  tons.” 

(Abst.,  p.  517;  Trans.,  p.  1178.) 

Pryor  said: 

‘^The  gasoline  boats  I mentioned  ran  from  Madison,  Ind., 
to  ]\fonterey,  Ky.,  12  miles  on  the  Ohio  and  40  miles  on  the 
Kentucky.  They  carry  about  15  to  20  tons.  One  of  them  is  65 
feet  long,  16  feet  wide,  44  feet  deep ; another  70  feet  long,  18 
feet  wide,  and  34  feet  deep.  That  is  the  depth  of  the  hold  of 
the  boat.  A boat  70  feet  long  by  18  feet  wide,  possibly  could 
navigate  on  about  2 feet  of  water.  The  other  boat  would  draw 
more  water.  They  would  carry  about  the  same  tonnage.  I 
operated  these  boats  at  different  times  about  a year.  They 
ran  both  in  the  winter  and  the  summer,  as  regular  freight  car- 
riers. They  carried  tobacco,  poultry,  eggs,  wheat  and  pas- 
sengers, and  miscellaneous  freight.  (Abst.,  p.  1028.) 

Mr.  Cooley  testified  to  the  use  of  these  boats  as  follows : 

I will  ask  you  to  state  whether  it  is  not  the  fact  that 
with  the  invention  of  the  motor  boat  there  has  not  been  a 
great  revival  of  shallow  draft  navigation  in  the  same  region. 
A.  There  has  been. 

KE-CROSS  EXAMIXATIOX. 

‘‘Q.  IVhere  has  the  invention  of  the  motor  boat  revived 
greatly  water  navigation  I A.  On  the  canals  of  the  State  of 
Ohio,  where,  on  account  thereof,  two  years  ago  the  Legislature 
ai>propriated  half  a million  dollars,  something  over  half  a 
million  dollars,  and  the  Legislature  which  has  just  adjourned 
has  appropriated  another  half  million  dollars  for  the  purpose 
of  cleaning  out  these  old  canals,  and  rebuilding  the  locks,  re- 
habilitating the  commerce  of  the  canals. 

^LV  number  of  bayous  of  Louisiana  and  in  the  delta  country 
the  invention  of  the  motor  boat  has  caused  a revival  of  navi- 
gation. In  respect  to  that  particular  development  I refer  you 
to  a memoir  by  Judge  R.  S.  Taylor  of  the  Mississippi  River 
Commission  published  within  the  last  few  months,  I think. 
4Vhen  I was  making  the  investigation  for  the  City  of  Roch- 


t 


741 


esier  in  iho  yoai*  HK);"),  I found  that  motor  boats  were  used 
upon  .the  Ku*ie  (''anal  for  delivery  by  the  ^-roeers  theni  in  the 
(hty  of  Roehester  in  delivering  tlieir  y)roduets  along  tlie  canal 
for  n distance  of  forty  miles  or  more  from  Itocliester,  in  com- 
petition with  two  railways  which  ran  on  either  ])ank  of  the 
canal.  .1  don’t  know  of  their  actual  use  upon  a stream  like 
the  Des  Plaines  River.  The  art  is  very  young  yet.  I have 
seen  some  kinds  of  motor  boats.  I have  not  had  any  experi- 
ence in  the  operation  of  them  personally.  The  tow-path  bank 
at  Dresden  Heights  would  come  down  on  rock.  Steam  canal 
boats  go  from  Ottawa  through  the  canal  to  Marseilles.  They 
do  not  go  into  the  canal  from  the  river  at  Ottawa.”  (Abst., 
p.  925;  Trans.,  pp.  2872-3-5.) 

The  paper  by  Judge  Robert  S.  Taylor,  of  the  Mississippi  River 
Commission,  ‘‘Present  Aspects  of  the  Mississippi  River  Problem,” 
to  which  Mr.  Cooley  referred  (Abst.,  p.  1186),  makes  the  follow- 
ing references  to  the  motor  freight  propeller: 

“The  Lakes-to-the-Gulf  waterway  will  be  constructed.  And 
when  done  it  will  exliibit  the  most  fortunate  combination  of 
economies  ever  brought  together  on  so  great  a scale.  At  one 
end  the  Cliicago  Drainage  Canal,  worth  all  it  cost  for  the  sani- 
tation of  the  city;  below  that  the  Illinois  River  section,  worth  a 
large  part  of  its  cost  for  the  water-power  developed;  and  at 
the  lower  section  the  protected  banks  of  the  Mississi])pi,  worth 
all  the  cost  of  the  work  in  the  perpetual  securit}"  of  tlie  alluvial 
valley  against  overflow. 

“Cue  further  thought,  not  for  its  utility,  but  its  inspiration. 
The  big  dredge  has  a little  brother  lately  come  into  the  world, 
but  destined  to  work  a mighty  revolution  in  water  way  trans- 
portation. It  is  the  gasoline  motor  freight  propeller,  scarcely 
larger  than  an  automobile,  with  its  little,  flat,  shallow  scow, 
the  cheapest  craft  ever  floated,  a mere  box,  satisfied  with  a foot 
and  a half  of  water,  jmslied  ahead,  or  towed  behind,  and  carry- 
ing a few  tons  of  merchandise.  It  is  a true  acpiatic  truck, 
scarcely  more  costly  than  a good  team  and  land  truck,  and 
requiring  only  one  man  to  own  and  run  it.  * * * 

“This  little  craft  has  been  coming  into  use  lately  on  the 
bayous  and  small  streams  of  the  alluvial  valley  in  increasing 
numbers.  That  we  shall  have  in  the  future  abundant  supplies 
of  fluid  fuels  and  simple  engines  for  using  them  is  not  to  be 
doubted.  We  have  been  hearing  for  twenty-five  years  of  the 
. 15,000  miles  of  navigable  channels  of  the  Mississippi  and  its 
tributaries.  We  have  taken  it  as  an  innocent  exaggeration. 
But  these  little  motor  boats,  between  the  Alleghenies  and 
Rockies,  and  Canada  and  Gulf,  will  find  all  that,  and  more.” 
(pp.  14-15.) 


“The  Census  Report  of  Transportation  by  Water,  1906,”  pp.  28 
and  29,  eontains  tlie  following  instructive  items: 

Table  8-1-. — CriARACTEB  of  Power  and  Propulsion,  by  Division: 


1906. 


Screw 

Steam 

Gasoline 

Division 

Number 
of  vessels 

Total 

horse- 

power 

Number 
of  vessels 

Gross 

tonnage 

Horse- 

power 

Number 

of  vessels 

Gross 

tonnage 

Horse- 

power 

Total 

9,927 

3,451,745  5,160  3,424,972  2,717,649  2,785  46,159  67,152 

Mississippi  River  and 

its  tributaries  1,435 

236,969  130  6,652  18,326  226  2,182  4,098 

Stern  Wheel 


Division 

Steam 

Gasoline 

Number 
of  vessels 

Gros's 

tonnage 

Horse- 

power 

Number 
of  vessels 

Gros's 

tonnage 

Horse- 

power 

Total 

Mississipp  River  and 
its  tributaries 

1,055 

678 

193,208 

104,476 

247,020 

169,210 

351 

312 

4,592 

3,929 

5,747 

4,911 

Side  Wheel 

Division 

Steam 

Gasoline 

Number 
of  vessels 

o 

be 

m -rt 

O 2 

o 1 

Horse- 
j power 

Number 
of  vessels 

Gross 

tonnage 

Horse- 

power 

Total 

543 

389,327 

413,152 

19 

247 

305 

]\lississippi  River  and 

its  tributaries 

72 

28,221 

39,731 

13 

151 

158 

' ' There  is  a great  disproportion  between  the  number  of  ves- 
sels propelled  by  steam  and  by  gasoline  engines  when  com- 
pared with  their  tonn'age  and  horse  power.  Vessels  reporting 
the  use  of  steam  power  for  propulsion  numbered  6,765,  or  68.1 
per  cent  of  the  total,  but  their  tonnage  was  4,008,431,^  or  98.7 
per  cent  of  the  total  tonnage  for  all  classes,  and  their  horse 
power  3,378,453,  or  97.9  per  cent  of  the  total.  Gasoline  boats, 
on  the  other  hand,  were  reported  to  the  number  of  3,155,  or 
31.8  per  cent  of  the  total  number  for  all  classes  of  vessels,  but 
their  tonnage  was  only  50,998,  or  1.3  per  cent  of  the  total,  and 
their  horse  power  73,204,  or  2.1  per  cent  of  the  total.  While 
the  use  of  gasoline  is  largely  confined  to  small  craft,  there  are 
some  fairly  large  vessels  equipped  with  engines  of  tliis  class 


74?> 


haviiii*-  n (*ai)a,('ity  ol*  sovoral  liiiridi'od  horse  powco*.  (;\- 

])enso  ol*  operating'  gasoline  engine's  of  large  j)ower,  tog(‘t}i(n* 
with  tlie  element  of  danger,  liave  undoiil)tedly  Ixien  strong 
faetors  in  (*onfining  their  use  to  sinall  vessels.  The  faed  shonid 
not  he  overlooked  that  the  Census  inquiry  was  confined  to  ves- 
sels of  not  less  tlian  5 net  tons,  so  that  the  liiindreds  of  boats 
of  smaller  tonnage  using  the  gasoline  engine  do  not  appear  in 
this  report.” 

The  early  use  of  the  Des  Plaines  was  by  batteanx  and  Mackinac 
boats,  and  large  oar-propelled  boats,  which  sometimes  carried  ten 
men  with  their  packs  of  furs,  which  were  caleld  ‘^canoes.” 

This  latest  development  of  navigation,  the  motor  freight  pro- 
peller, is  this  same  type  of  boat  with  a gasoline  motor  set  in  the 
bottom.  In  the  development  of  the  art,  boats  have  been  invented 
and  brought  into  successive  use  within  the  last  decade,  which  are 
specially  adapted  to  navigation  upon  these  shallow  interior  streams. 

We  can  imagine  a court,  which  had  seen  only  large  boats  and 
knew  only  of  that  period  in  the  development  of  water  craft,  in 
which  the  boats  were  growing  ever  larger  and  larger,  supposing 
that  only  such  waters  as  would  accommodate  the  largest  craft,  could 
be  considered  navigable,  and  all  others  rejected  as  private  pro])erty 
without  any  public  rights  attached. 

But  a court  which  would  ado])t  such  an  idea  and  make  it  a rule 
of  law  binding  for  all  time,  would,  in  the  language  of  Justice 
M’Lean  in  the  Wheeling  Bridge  case,  ‘‘reject  the  improvements 
recommended  by  ingenuity  and  exi)erience  and  close  its  eyes  to  one 
great  source  of  our  prosperity.” 


7U 


X. 


THE  WAI'EHS  OF  LAKE  MK’llIGAN  ADDED  TO  THE  DES  PLAINES  RIVER  BY 

THE  SANITARY  DISTRICT  CHANNEL  LAWFULLY  AND  PERMANENTLY 
IMl’ROVED  THE  NAVIGATION  OF  THE  RIVER  AND  ITS  NAVI- 
GABILITY IS  TO  BE  JUDGED  AS  SO  LAWFULLA" 

AND  PERMANENTLY  IMPROVED. 

Schulte  V.  Warren,  218  111.,  108,  120. 

Mendota  Club  v.  Anderson,  101  Wis.,  479;  S.  C.,  78;  N. 
W.,  185. 

Smith  V.  Youman,  96  Wis.,  103. 

Village  of  Peivankee  v.  Savoy,  103  Wis.,  271 ; 50  L.  R.  A., 

836. 

The  statutes  of  Illinois,  authorizing  the  Illinois  and  Michigan 
(linal,  and  the  Deep  Cut,  and  authorizing  the  construction  of  the 
Sanitary  District  Channel,  have  permanently  altered  the  face  of 
nature,  and  brought  Chicago  into  the  Mississippi  water  shed.  , 

Missouri  v.  Illinois,  200  IT.  S.,  496,  526 

IVhen  such  a permanent  alteration  has  been  made,  the  stream  is 
tliereafter  to  he  judged  by  its  altered  capacity  and  improved  condi- 
tion. Ibid. 

The  Sanitary  District  Channel  was  constructed  for  the  primary 
purpose  of  providing  drainage,  by  the  addition  of  a vast  amount  of 
the  water  of  Lake  Michigan  to  the  Des  Plaines  River,  and  the  inci- 
dental purpose  of  improving  the  navigation  of  the  Des  Plaines  and 
Illinois  rivers  by  means  of  the  water  so  added. 

The  Act,  entitled:  ^L\.n  Act  to  create  sanitary  districts,  and  to 
remove  obstructions  in  the  Des  Plaines  and  Illinois  Rivers,”  a^o- 
proved  May  29,  1889  (L.  1889,  p.  125,  2.  S.  & C.,  2 ed.,  ch.,  42,  pp. 
1-28),  was  passed  on  the  same  day  as  the  following  legislative  reso- 
lution, entitled: 

RIVER  IMPROVEMENT,  DES  PLAINES  AND  ILLINOIS. 

‘AVhereas,  The  Illinois  River,  from  LaSalle  to  Grafton,  is 
the  remnant  of  an  ancient  stream  bed  bordered  by  wide  and 
low  bottom  land,  much  cut  up  by  lake,  bayou,  and  marsh ; an 
alluvial  stream  of  small,  low  water  volume  and  sluggish  cur- 


745 


rcMii,  willi  a (ieclivily  ol*  only  LMi  I'ccit  in  225  niikis,  a (l(M:livily  so 
small  as  to  a largo  vohimo  of  water  to  maintain  an 

elVoetive  (*lianiiel ; a stream  wliieli  in.  its  natural  condition  is 
able  to  maintain  but  a small  deptli  tbrougli  tlie  deposits  with 
wbicli  the  tributaries  constantly  tend  to  choke  the  channel ; 
a tendency  ever  increasing  with  the  inhabitation  of  the  water- 
slied  and  the  cultivation  and  reclamation  of  lands. 

“Whereas^  The  erection  of  dams  with  a view  to  the  creation 
of  pools  of  slack  water  for  the  purpose  of  navigation,  dimin- 
ishes the  scouring  force  of  the  current  at  medium  and  low 
stages  and  promotes  channel  decay,  causes  deposits  in  the 
mouths  of  tributaries  and  the  more  ready  overflow  of  the  bot- 
tom lands ; and  generally  the  tendency  is  to  restore  the  natural 
channel  of  equilibrium  at  a higher  level  with  great  ultimate 
injury  to  the  valley  from  overflow  and  unhealthfulness,  a 
tendency  already  exhibited  in  a notable  degree  from  the  condi- 
tions created  by  the  dams  erected  by  the  State  at  Henry  and 
Copperas  Creek  in  1872  and  1877  respectively. 

‘‘Whereas,  The  completion  by  the  United  States  of  the  dams 
at  LaGrange  and  Camps ville  will  raise  the  general  level  of  the 
river  below  Copperas  Creek  by  several  feet  and  promote  all 
those  injurious  tendencies  to  channel  decay,  with  overflow  and 
unhealthfulness  already  exhibited  through  the  agency  of  the 
state  works  at  Henry  and  Copperas  Creek. 

“Whereas,  The  official  report  of  the  United  States  for  1868 
show^ed  that  it  was  j)racti cable  to  obtain  by  dredging  and  a 
minimum  low  water  volume  at  Peru  of  58,000  cubic  feet  per 
minute,  a channel  for  navigation  of  a width  of  160  feet  and  a 
depth  exceeding  four  feet,  and  the  official  report  for  1880 
showed  that  it  was  practicable  to  obtain  a channel  for  naviga- 
tion 200  feet  wide  and  six  feet  deep  by  dredging,  and  a mini- 
mum flow  of  94,000  cubic  feet  per  minute  in  the  river  below 
Copperas  Creek,  und  that  the  (‘ost  was  not  materially  differ- 
ent from  the  cost  of  the  improvement  by  locks  and  dams. 

“Whereas,  The  ])resent  addition  to  tlie  low^  water  volume  of 
the  Illinois  River  through  the  summit  level  of  the  Illinois  and 
Michigan  Canal  from  Lake  Michigan  more  than  doubles  the 
volume  of  water  used  in  the  estimate  of  1868  for  the  channel 
below  Peru  and  adds  50  per  cent  to  the  volume  used  in  the 
estimate  of  1880  for  the  channel  below  Copperas  Creek  and 
said  contribution  from  Lake  Michigan  will  be  increased  in  the 
immediate  future,  thus  enabling  the  depth  now  ])rojected  for 
navigation  below  Peru  to  be  obtained  by  channel  improvement 
at  moderate  cost  and  with  decided  advantage  to  material  inter- 
ests and  to  healthfulness  along  the  valley. 

“Whereas,  It  is  contemplated  to  increase  the  volume  from 
Lake  Michigan  to  300,000  cubic  feet  per  minute  within  a few 
years  and  ultimately  to  add  600,000  cubic  feet  or  more,  thus 


enabling  a large  depth  for  navigation  to  he  obtained  by  an 
iin])rovcd  eliannel,  and  tliat  said  channel  will  be  self-sustain- 
ing and  self-improving  and  will  discharge  flood  waters  more 
readily,  flms  benefitting  the  bordering  lands  and  increasing  the 
health  fill  ness  of  the  valley. 

'^Whereas,  Works  now  projected  by  the  City  of  Chicago  will 
form  part  of  a water  way  of  large  proportions  from  Lake 
Michigan  via  the  l)es  Plaines  and  Illinois  Rivers  to  the  Mis- 
sissippi River,  of  which  the  dams  and  locks  upon  the  alluvial 
section  of  the  Illinois  River  can  form  no  part  and  which,  if 
allow^ed  to  remain,  will  increase  the  overflow  and  be  detri- 
mental to  the  welfare  of  the  Illinois  valley  and  the  interests  of 
the  State.  Therefore,  be  it 

''Resolved,  By  the  Senate,  the  House  of  Representatives 
concurring  herein : 

“1.  That  it  is  the  policy  of  the  State  of  Illinois  to  procure 
the  construction  of  a ivater  way  of  the  greatest  practicable 
depth  and  usefulness  for  navigation  from  Lake  Michigan  via 
the  Des  Plaines  and  Illinois  Rivers,  to  the  Mississippi  river, 
and  to  encourage  the  construction  of  feeders  thereto  of  like 
proportions  and  usefulness. 

"2.  That  the  United  States  is  hereby  requested  to  stop 
work  upon  the  locks  and  dams  at  LaGrange  and  Campsville 
and  to  apply  all  funds  available  and  future  appropriations  to 
the  improvement  of  the  channel  from  LaSalle  to  the  mouth 
with  a view  to  such  a depth  as  will  be  of  present  utility  and  in 
such  manner  as  to  develop  progressively  all  the  depth  prac- 
ticable by  the  aid  of  a large  water  supply  from  Lake  Michigan 
at  Chicago. 

‘‘3.  That  the  United  States  is  requested  to  aid  in  the  con- 
struction of  a channel  not  less  than  160'  feet  wide  and  22  feet 
deep  with  such  a grade  as  to  give  a velocity  of  3 miles  per  hour 
from  Lake  Michigan  at  Chicago  to  Lake  Joliet,  a pool  of  the 
Des  Plaines  River,  immediately  below  Joliet,  and  to  project  a 
eliannel  of  similar  capacity  and  not  less  than  14  feet  deep  from 
Lake  Joliet  to  LaSalle,  all  to  be  designed  in  such  manner  as  to 
permit  future  development  to  a greater  capacity. 

‘‘Adopted  by  the  House  May  27,  1889. 

•‘Concurred  in  by  the  Senate  May  28,  1889.” 

(Laws  of  1889,  pp.  375-376.) 

Section  24  of  the  Drainage  Act  shows  the  same  purpose,  viz. 

(2  S.  & C.,  2 ed.,  Ch.  42.)  : 

‘‘Section  24.  When  such  channel  shall  be  completed,  and 
the  ivater  turned  therein,  to  the  amount  of  300,000  cubic  feet  of 
water  ])er  minute,  the  same  is  hereby  declared  a navigable 
stream.” 


747 


This  moans  that  tho  iraicy  llofvinr/  in  tliai  clumn/d  is  a navi^ahUi 
stream. 

'riie  iratcr  so  turned  in  was  navigable  in  fact,  and  it  does  not 
lose  its  navigability  upon  passing  out  of  the  artificial  channel  into 
the  channel  of  the  Des  Plaines  River. 

That  water  is  just  as  navigable  half  a mile  southwest  of  Joliet 
as  it  is  half  a mile  northeast  of  Joliet. 

The  Drainage  Act  provided  ample  remedy  for  any  damage  to 
persons  or  property  by  the  adding  of  this  navigable  body  of  water 
to  the  Des  Plaines  River,  viz. : 

‘‘Section  16.  Wlienever  the  board  of  trustees  of  any  sani- 
tary district  shall  pass  an  ordinance  for  the  making  of  any 
improvement  which  such  district  is  authorized  to  make,  the 
making  of  which  will  require  that  private  property  should  be 
taken  or  damaged,  such  district  may  cause  compensation  there- 
for to  be  ascertained,  and  condemn  and  acquire  possession 
thereof  in  the  same  manner,  as  nearly  as  may  be,  as  is  pro- 
vided in  an  act  entitled  ‘An  Act  to  provide  for  the  exercise  of 
the  right  of  eminent  domain,’  approved  April  10,  1872;  pro- 
vided, however,  that  proceedings  to  ascertain  the  compensation 
to  be  paid  for  taking  or  damaging  private  pi'operty  shall,  in 
all  cases,  be  instituted  in  the  county  where  the  property  sought 
to  be  taken  or  damaged  is  situated;  and,  provided,  that  all 
damages  to  property,  whether  determined  by  agreement  or  by 
final  judgment  of  court,  shall  be  paid  out  of  the  annual  district 
tax  prior  to  the  payinent  of  any  other  debt  or  obligation. 

“'Section  17.  When  it  shall  be  necessary  in  ma'king  any  ini- 
provements  which  any  district  is  authorized  by  this  act  to 
make,  to  enter  upon  any  public  property  or  })roperty  held  for 
public  use,  such  district  shall  have  the  power  so  to  do,  and  may 
acquire  the  necessary  right  of  way  over  such  property  held 
for  public  use  in  the  same  manner  as  is  above  provided  for 
acquiring  private  property,  and  may  enter  upon,  use,  widen, 
deepen  and  improve  any  navigable  or  other  wafers,  waierways, 
canal  or  lake.  Provided,  the  public  use  thereof  shall  not  be 
unnecessarily  interrupted  or  interfered  with,  and  that  the 
same  shall  *‘be  restored  to  its  former  usefulness  as  soon  as 
practicable.  * * * 

“ Section  18.  In  making  any  special  assessment  for  any  im- 
provement which  recjuires  the  taking  or  damaging  of  ])ro'|)- 
erty,  the  cost  of  acquiring  the  right  to  damage  or  take  such 
})ro]')erty  ma}"  be  estimated  and  included  in  the  assessment  as 
a part  of  the  cost  of  making  such  improvement. 

“Section  19.  Every  sanitary  district  shall  be  liable  for  all 
damages  to  real  estate  within  or  without  such  district  whicti 


748 


shall  l)e  ()vcM-fl()\vo(l  or  otherwise. damaged  by  reason  of  the 
eonstruetion,  enlargement  or  use  of  any  channel,  ditch,  drain, 
outlet  or  other  improvement  under  the  provisions  of  this  act; 
and  actions  to  recover  sucli  damages  may  be  brought  in  the 
('ounty  where  such  real  estate  is  situate,  or  in  the  county  where 
such  sanitary  district  is  located,  at  the  option  of  the  party 
claiming  to  be  injured.  And  in  case  judgment  is  rendered 
against  such  district  for  damage  the  plaintiff  shall  also  recover 
his  reasonable  attorney’s  fees,  to  be  taxed  as  costs  of  suit; 
provided,  however,  it  shall  appear  on  the  trial  that  the  plain- 
tiff notified  the  trustees  of  such  district  in  writing,  at  least  60 
days  before  such  suit  was  commenced  by  leaving  a copy  of 
such  notice  with  some  one  of  the  trustees  of  such  district 

stating  that  he  claims  damages  to  the  amount  of 

dollars,  by  reason  of  (here  insert  the  cause  of  damage)  and  in- 
tends to  sue  for  the  same;  and  provided,  further,  that  the 
amount  recovered  shall  be  larger  than  the  amount  offered  by 
said  trustees  (if  anything)  as  a compromise  for  damages  sus- 
tained. ’ ’ 

(111.  L.  of  1889,  pp.  132-133.) 

These  remedies  provided  by  the  Sanitary  District  Act  embrace 
both  condemnation  of  property  directly  taken,  and  the  right  of 
action  by  the  land  owner  for  property  damaged  or  interfered  with 
in  its  use,  though  not  taken. 

Sanitary  District  of  Chicago  v.  Ray,  85  111.  App.,  115,  119. 

Sanitary  District  of  Chicago  v.  Ray,  second  case,  199 
111.,  63. 

Sanitary  District  of,  Chicago  v.  Martin,  227  Ilk,  260. 

Beidler  v.  Sanitary  District  of  Chicago,  211  111.,  628. 

The  remedy  by  condemnation  proceedings  applies  to  property  to 
be  taken.  The  remedy  of  action  by  the  property  owner  applies  to 
property  damaged,  but  not  taken. 

As  to  the  latter  (the  remedy  by  action  of  the  land  owner)  it  is 
not  unlaivful  for  the  Sanitary  District  to  proceed  to  construct  its 
improvement  before  the  ascertainment  or  2^aym.eiit  of  the  amount 
of  damages. 

See  authorities  last  cited,  also : 

Peoria,  etc.,  R.  R.  Co.  v.  Schartz,  84  111.,  135. 

Parker  v.  Catholic  Bishop  of  Chicago,  146  111.,  158;  affirm- 
ing, 41  111.  App.,  74. 

Stetson  V.  Chicago,  75  111.,  74. 

Patterson  v.  Chicago,  etc.,  R.  Co.,  75  111.,  588. 


749 


Tills  principle,  that  the  ascertainment  of  (lainages  need  not  pre- 
cede the  construction  of  the.  work,  applies  particularly  to  the  dam- 
ages l)y  the  flowage  of  land  by  the  construction  of  public  works. 
Nevins  v.  Peoria^  41  Ilk,  502. 

Wcibasli  V.  Erie  Canal  Co.,  16  Ind.,  441. 

Proprietors  of  Locks  and  Canals  v.  Nashua  R.  Co.,  10 
Cush.,  385. 

Estahrooks  v.  Peterborough  R.  Co.,  12  Cush.,  224. 
Trenton  Water  Poiver  Co.  v.  Raff,  7 Vroom.,  335. 

Hooker  v.  New  Haven  Co.,  14  Conn.,  146;  s.  c.  explained 
15  Conn.,  312. 

Grand  Rapids  Booming  Co.  v.  Jarvis,  30  Mich.,  321. 

Mills  V.  U.  S.,  46  F.  E.,  746. 

Pumpley  v.  Green  Bay  Co.,  13  Wall.,  166. 

Matter  of  Commissioners  of  State  Reservation,  37  Hun., 
537,  542. 

The  improvement  of  navigation  is  a public  use. 

In  re  Burns,  155  N.  Y.,  23. 

Hazen  v.  Essex  County,  12  Cush.,  475 
Spooner  v.  McConwell,  1 McL.,  337. 

Homochitto  Rivers  Com.  v.  Withers,  29  Miss!,  21. 
Barney  v.  Keokuk,  94  U.  S.,  324. 

Avery  v.  Fox,  2 Fed.  Cas.,  No.  674 
Bedford  V.  U.  S.,  36  U.  S.  Ct.  of  Cl.,  474. 

The  policy  of  the  'State  does  not  authorize  the  taking  or  damag- 
ing of  private  property  for  private  uses ; much  less  of  public  prop- 
erty for  private  uses. 

Mather  v.  Ottawa,  114  111.,  659. 

Gaylord  v.  Sanitary  District  of  Chicago,  304  111.,  576. 

This  latter  case  holds : 

That  the -Act  of  Mills  and  Millers  in  so  far  as  it  purports 

to  authorize  the  condemnation  of  private  property  for  the  pur- 
poses of  public  mills  and  machinery  other  than  public  grist 
mills,  is  void,  as  permitting  the  taking  of  property  for  private 
uses ; 

and  holds,  p.  581 : 

That  these  acts  were  ‘^manifestly  passed  at  a time  when 
water  power  was  practically  the  only  means  of  running  such 


750 


mills,  and  wliieli,  'in  tlio  tlion  existing  condition  of  society,  were 
a ])ii))lic  necessity.” 

For  siK'li  iiennanent  damages  ])y  lawful  works,  the  right  of  recov- 
ery is  complete  when  the  ])ermanent  change  in  the  face  of  nature 
is  made.  The  ownei*  who  owns  the  property  at  that  time  has  the 
right  of  recovery,  once  for  all,  of  all  damages,  past,  present  and 
future. 

Chicago  & Alton  R.  Co.  v.  Maher,  91  111.,  312. 

Chicago  8z  Eastern  111.  R.  Co.  v.  Loeh,  118  111.,  203. 

III.  Central  v.  Crahill,  50  111.,  241. 

C.  R.  I.  & P.  R.  Co.  V.  Carey,  90  111.,  514 

Troy  V.  Cheshire  R.  R.,  12  N.  H.,  83. 

Van  Schoyck  v.  Del.,  etc..  Canal  Co.,  20  N.  J.  L.,  249. 

Heard  v.  Middlesex  Canal  Co.,  5 Mete.,  81. 

The  drainage  water  was  turned  into  the  Des  Plaines  Eiver  Jan. 
17,  1900. 

The  party  who  owned  the  land  then  had  the  right  of  action. 

Upon  the  sale  of  that  property,  he  sold  it  burdened  with  the 
altered  condition,  produced  by  the  addition  of  the  drainage  water 
— which  burden  included  the  burden  of  increased  navigability. 

The  right  of  action  for  the  damages  consequent  upon  the  im- 
provement of  navigation  did  not  pass  to  the  grantee.  It  is  a per- 
sonal right  which  is  not  transferable. 

Chicago  & Alton  R.  R.  v.  Maher,  91  111.,  312. 

Chicago  & Eastern  111,  Ry.  Co.  v.  Loeh,  118  111.,  203. 

Galt  V.  Chicago  N.  IF.  Ry.  Co.,  157  111.,  125,  134. 

City  of  Centralia  v.  IF  right,  156  111.,  561. 

Pinkneyville  v.  Hutchings,  63  111.  App.,  137. 

It  is  admitted  by  the  defendant  that  it  acquired  title  to  the  prop- 
erty on  each  side  of  the  river  in  Section  25,  Township  34,  N.  Eange 
8,  and  in  Section  36,  Township  34,  Eange  8,  to  the  same  extent  that 
it  now  owns,  by  deed  from  Harold  T.  Griswold  on  November  30, 
1906,  being  the  j:>roperty  on  each  side  of  the  river,  at  the  point 
where  the  dam  was  located. 

And  that  S'aid  Griswold  acquired  title  to  said  property  on  each 
side  of  the  river,  as  Trustee  for  Mr.  Charles  A.  Afimroe  and  Mr. 


751 


Frank  (I.  Logan;  and  tliai  said  (L'isvvold  first  acquired  an  inl(;r(ist 
tluM-ein  by  ('onii’a(*t  in  tlio  Spring  of  tlio  yoai-  11)04,  vvliicli  intorost 
aftcM’wards  ripened  into  fitle,  and  wliicli  title  he  eonveyed  to  the 
Fcononiy  Liglit  &:  Power  Ooinpany,  Novein])er  50,  1900.  (Ahst., 
pp.  l()97-8.) 

The  Drainage  water  had  been  running  in  the  Des  Plaines  Tiiver 
over  this  spot  from  Jan.  17,  1900,  to  Nov.  30,  1900^ — six  years,  ten 
months  and  a half — when  the  defendant  acquired  its  title.  It  took 
title  burdened  with  the  changed  condition  and  improved  naviga- 
bility thereby  produced. 

Any  right  which  the  grantor,  preceding  Griswold,  had  was  sub- 
ject to  the  public  right,  which  must  he  left  free  and  unobstructed. 

Even  a work  which  might  be  lawful  when  erected,  because  not 
interfering  with  the  public  right  of  navigation  in  its  state  of  de- 
velopment then  existing,  must  give  way  whenever  by  improvement 
in  the  navigability  it  becomes  an  obstruction  to  the  paramount 
right  of  navigation. 

An  owner  who  erects  a structure  in  the  soil  under  the  navi- 
gable water,  does  it  at  his  peril,  and  if  it  becomes  an  obstruc- 
tion to  the  paramount  right  of  navigation,  he  may  be  com- 
pelled to  remove  it.  ^ ’ 

West  Chicago  St.  R.  R.  Co.  v.  The  People,  214  111.,  9,  20. 

Gibson  v.  United  States,  166  IT.  S.,  269. 

Holyoke  Water  Power  Co.,  v.  Conn.  River  Co.,  52  Conn., 
570. 

The  change  in  the  depth  and  volume  of  water  in  the  Des  Plaines 
by  the  addition  of  the  drainage  water  was  a lawful  change,  having 
the  incidental  object  of  improving  the  navigation  of  the  river. 

It  was  made  by  an  expenditure  of  upwards  of  $50,000,000  of  pub- 
lic money  raised  by  taxation,  and  was  made  in  pursuance  of  the 
Drainage  Act  and  the  Navigation  Resolution  of  'May  28,  1889. 

An  improvement  of  navigation  was  one  of  the  purposes  for  which 
it  was  made.  Defendant  claims  that  the  river  was  non-uavigable 
to  start  with ; that  there  was  no  incidental  purpose  of  improving 
navigation  in  this  expenditure  of  over  $50,000,000  of  public 
money;  and  that,  therefore,  this  water,  when  added  to  the  Des 
Plaines  River  was  abandoned  water,  which  partook  of  the  char- 


aeter  oT  tlie  non-navi  gable,  original  stream;  and  therefore,  under 
the  doctrine  of  Druley  v.  Adam,  102  111.,  177,  it  became  part  of  the 
miearned  increment  of  the  defendant  by  virtue  of  its  lower  rip- 
arian proprietors})  ip. 

The  State  insists  upon  the  contrary  of  this. 

The  State  insists  that  fbe  purpose  of  improving  navigation  is  set 
forth  in  the  title  and  body  of  the  Drainage  Act,  and  in  the  concur- 
rent Navigation  Resolution,  passed  April  28,  1889. 

In  Druley  v.  Adam,  the  Canal  Commissioners  were  taking  lower 
down  the  water  which  had  been  put  into  the  river  higher  up.  The 
waters  had  been  put  in  for  the  purpose  of  improving  navigation, 
and  not  for  the  purpose  of  water  power;  and  the  taking  of  them  out 
was  not  for  the  purpose  of  navigation,  and  was  for  the  purpose  of 
water  power. 

In  the  case  at  bar,  the  waters  were  put  in  for  the  purpose  of  navi- 
gation, and  have  never  been  taken  out,  and  there  was  no  intention 
on  the  part  of  the  State  either  of  taking  them  out,  or  of  letting  any 
one  else  take  them  out. 

In  Druly  v.  Adam,  this  court  said : 

‘‘The  deepening  of  the  summit  level,  and  the  cutting  of  the 
tunnel,  and  doing  of  the  other  work  enabling  appellant  to  with- 
draw water  from  the  canal  to  propel  his  machinery,  wmre  not 
concurrent  acts,  nor  parts  of  a single  improvement.  The  acts 
mere  disconnected  in  point  of  time  and  disconnected  in  purpose. 
Appellant’s  water  power  was  obtained  b}^  him  from  the  Board 
of  Canal  Commissioners  long  subsequent  to  the  deepening  of 
the  Summit  level,  and,  for  aught  that  is  disclosed  in  this  record, 
it  teas  not  even  thought  of  ivhile  that  ivorlc  ivas  in  progress,  nor 

until  some  time  after  its  completion. 

******* 

‘ ‘ The  Act  of  April  16,  1865,  under  which  the  City  of  Chicago 
deepened  the  Summit  level,  discloses  no  such  purpose.  It 
shoivs  that,  so  far  as  the  City  of  Chicago  teas  concerned,  the 
sole  purpose  was  to  purify  or  cleanse  the  Chicago  River.  It  is 
true,  it  is  therein  shoivn  that  it  was  desirable  to  cut  down  the 
Summit  level,  so  as  to  draw  a large  supply  of  water  from  Lake 
Michigan;  but  this  was  not  for  motive  power,  but  is  expressly 
said  to  be  ^ for  navigation.^  ” 

The  deep  cut  was  made  to  purify  the  Chicago  River,  “and  for 
navigation,”  therefore  the  plan  thought  of  long  afterwards  by  the 
Canal  Commissioners  of  diverting  a lot  of  the  water  so  added  and 


seHini>-  it  out  tor  private  piirpovse.s  irds  held  to  he  not  u'itJiin  the 
purp()S(>  of  the  Act,  authorizing  that  addition  to  the  river. 

'^riie  idea  of  water-power,  to  which  it  was  subsequently  sought  to 
1)0  devoted,  was  not  even  thought  of  until  some  time  after  its  com  • 
})letion. 

lint  the  drainage  water  wms  turned  in  for  the  very  ])urpose  of 
iuipi'oving  navigation,  and  the  purpose  of  navigation  was  writ 
large  upon  the  face  of  the  Act,  authorizing  the  expenditure  of  pub- 
lic treasure  to  accomplish  this  beneficent  result. 

The  imi)rovement  of  navigation  was  not  something  ‘^discon- 
nected in  point  of  time  and  disconnected  in  purpose,”  from  the 
original  Act.  It  was  vitally  connected  from  the  beginning  as  an 
incidental  and  lawful  purpose  of  the  Drainage  Act. 

People  V.  Nelson,  133  111.,  565. 

The  ])u])lic  may  lawfully  unite  the  improvement  of  navigation 
with  other  purposes,  and  establish  a imblic  work  combining  both. 

Kaukanna  Co.  v.  Green  Bay,  etc..  Canal  Co.,  142  IT.  S.,  254. 

Green  Bay  Canal  Co.  v.  Patten  Paper  Co.,  172  IT.  S.,  58. 

Stockton  V.  Pou'ell,  29  Fla.,  I;  15  L.  R.  A.,  42. 


XL 

THE  ORDINANCE  OF  1787  DEDICATED  AND  PRESERVED  THIS  STREAM  AS  A 

HIGHWAY. 

THE  NAVIGATION  CLAUSE  OF  THE  ORDINANCE  OF  1787  AND  THE!  RE- 
ENACTMENT AND  CONFIRMATION  THEREOF. 

These  enactments  are  as  follows: 

1787  Ordinance  of. 

“Section  14.  It  is  hereliy  ordained  and  declared,  by  the 
authority  aforesaid,  that  the  following  articles  shall  be  consid- 
ered as  articles  of  comjmct,  between  the  original  States  and  the 
people  and  States  in  the  said  territory,  and  forever  remain 
unalterable,  unless  by  common  consent,  to  wit:  * * 

“Art.  IV.  The  navigable  waters  leading  into  the  Mississi})pi 
and  St.  Lawrence,  and  the  carrying  jilaces  between  the  same, 
shall  be  common  highways,  and  forever  free,  as  well  to  the 
inhabitants  of  the  said  territory  as  to  the  citizens  of  the  United 


States,  and  those  of  any  otlier  States  that  may  be  admitted 
into  tlie  ('onfederaey  wiithoiit  tax,  iropost,  or  duty  tlierefor.” 

1 1.  S.  \l.  S.,  2 ed.,  1878,  p.  13. 

1 Starr  & (birtis,  2 ed.,  p.  42. 

A))[)arently  the  orig-inal  of  tliis  elaiise  of  the  ordinance  is  found 
ill  Journals  of  (Juigress,  Vol.  lY.,  p.  f)37,  proceedings  of  May  12, 
178(),  reading  as  follows: 

''On  motion  of  Mr.  Grayson,  seconded  by  Mr.  King, 

^ liesolved,  That  the  navigable  waters  leading  into  the  Mis- 
sissi|)pi  and  St.  Lawrence,  and  the  carrying  places  between 
the  same  be,  and  are  hereby  declared  to  be  common  highways, 
and  be  forever  free,  as  well  to  the  inhabitants  of  the  isaid  terri- 
tory, as  to  the  citizens  of  the  United  States,  and  those  of  any 
otlier  States,  that  may  be  admitted  into  the  Confederation, 
without  any  (fax,  impost,  or  duty  therefor.” 

And  see  AYinsor’s  "y\Mstward  Movements,”  p.  256. 

1789  Aiigusf  7.  Act  of  Congress  entitled 

“An  Act  to  provide  for  the  Government  of  the  Territory 
Northwest  of  the  Eiver  Ohio.  1.  U.  S.  Statutes  at  Large,  p.  50. 

‘Whereas,  In  order  that  the  ordinance  of  the  United  States 
in  Congress  assembled,  for  the  government  of  the  territory 
northivest  of  the  River  Ohio  may  contmue  to  have  fidl  effect, 
it  is  requisite  that  certain  provisions  should  be  made,  so  as  to 
adapt  the  same  to  the  present  Constitution  of  the  United 
States. 

"Section  1.  Be  it  enacted  by  the  Senate  and  House  of  Rep 
resentatives  of  the  United  States  of  America  in  Congress  as- 
sembled, That  in  all  cases  in  which  by  the  said  ordinance,  any 
information  is  to  be  given,  or  communication  made  by  the  gov- 
ernor of  the  said  territoin^  to  the  United  States  in  Congress 
assembled,  or  to  any  of  their  officers,  it  shall  be  the  duty  of  the 
said  governor  to  give  such  information  and  to  make  such  com- 
munication to  the  President  of  the  United  States,  and  the 
President  shall  nominate,  and  by  and  with  the  advice  and  con- 
sent of  the  Senate,  shall  appoint  all  officers  which  by  the  said 
ordinance  were  to  have  been  appointed  by  the  United  States 
in  Congress  assembled,  and  all  officers  so  appointed  shall  be 
commissioned  by  him;  and  in  all  cases  where  the  United  States 
in  Congress  assembled,  might,  by  the  said  ordinance,  revoke 
any  commission  or  remove  from  any  office,  the  President  is 
hereby  declared  to  have  the  same  powers  of  revocation  and  re- 
moval. 

"Section  2.  And  be  it  further  enacted,  That  in  a case  of  the 
death,  removal,  resignation,  or  necessary  absence  of  the  gov- 


(M-nor  of  tlio  said  territoi-y,  the  secretary  tlier(H)r  shall  he;,  and 
he  is  hereby  autliorized  and  required  to  execute  all  tlie  powers, 
and  iierforni  all  the  duties  of  the  governor,  during  the  vacanc'y 
occasioned  by  the  removal,  resignation  or  necessary  a})sence 
of  tlie  said  governor. 

‘‘Apiproved,  August  7,  1789.” 

1795  December  7. 

“Treaty  of  Greenville,  duly  confirmed  by  tlie  Senate,  ceded 
to  the  people  of  the  United  States  the  right  of  free  passage 
by  land  and  water,  “From  the  mouth  of  the  Chicago  to  the 
comniencement  of  the  pjortage  l)etween  that  river  and  the  Illi- 
nois, and  down  the  Illinois  River  to  the  Mississippi.” 

1 Am.  St.  Papers,  Vol.  IV. 

Chap.  2,  Indian  Affairs,  Vol.  I. 

1796  Act  of  Congress,  May  18,  entitled, 

“An  Act  providing  for  the  sale  of  the  lands  of  the  Unitec] 
States  in  the  territory  northwest  of  the  River  Ohio  and  above 
the  mouth  of  the  Kentucky  River. 

“'Section  9.  And  be  it  further  enacted  that  all  navigable 
rivers  within  the  territory  to  be  disposed  of  by  virtue  of  this 
act  shall  be  deemed  to  be  and  remain  public  highways.  ’ ’ 

1 U.  S.  Statutes  at  Large,  Ch.  29,  p.  468. 

1804  March  26.  Act  of  Congress  entitled 

“An  Act  making  provision  for  the  dis})osal  of  the  public* 
lands  in  the  Indiana  Territory  and  for  other  purposes. 

“Section  6.  All  the  navigable  rivers,  creeks  and  waters 
within  the  Indiana  Territory  shall  be  deemed  to  be  and  remain 
public  highways.” 

1 IT.  S.  Statutes  at  Large,  Ch.  55,  p.  279. 

1807  August  7 and  8,  Robert  Pulton  made  the  first  successful 
steam-boat  voyage. 

1809  February  3.  Act  of  Congress  entitled 

“ An  Act  for  dividing  the  Indiana  Territory  into  two  separ- 
ate governments.  2 IT.  S.  Statutes  at  Large,  514. 

“Section  2.  And  he  it  further  enacted,  that  there  shall  be 
establislied!  within  the  said  territoiy  a govermnent  in  all 
respects  similar  to  that  ])rovided  by  the  ordinance  of  Congress, 
passed  on  the  13th  day  of  July,  1787,  for  the  govei  nment  of  the 
territory  of  the  United  States,  northwest  of  the  T*iver  Ohio  ; and 
by  an  act  passed  on  the  7th  day  of  August,  1789,  entitled  L\n 
Act  to  provide  for  the  Government  of  the  Territory  northwest 
of  the  river  Ohio;’  and  the  inhabitants  thereof  shall  he  entitled 


to  and  enjoy  all  and  sinyidar  the  rights,  privileges  and  ad- 
vantages, granted  and  secured  to  the  people  of  the  territory  of 
the  United  States,  northivest  of  the  river  Ohio,  hy  the  said 
ordinance.’^ 

1 Sitarr  & Curtis,  2 Ed.  p.  49. 

181()  August  24. 

The  Pottawattoniie  Treaty  of  Black  Patridge  ceded  to  the 
IJ.  S.  a tract  of  land  10  miles  wide  on  each  side  of  fhe  Des 
Plaines. 

7 U.  S.  Btaf.  at  L.,  pp.  146-7. 

(This  is  the  first  official  use  of  the  name  Des  Plaines.) 

1816  IT.  S.  Survey  of  the  river  made  by  Major  Long.  (Ex.  Doc. 
Xo.  17,  IGth  Cong.,  Isf  Session). 

1818  April  18.  Acl  of  Congress  entitled 

‘'An  Act  to  enable  the  people  of  Illinois  to  form  a constitu- 
tion and  State  government,  and  for  the  admission  of  such  State 
into  the  Union  on  an  equM  footing  with  the  original  States. 

3 U.  S.  'Statutes  at  Large,  428. 


“Section  4.  And  be  it  further  enacted  * * * * Pro- 

vided, that  the  same,  whenever  formed,  shall  be  republican,  and 
not  repugnant  to  the  ordinance  of  the  13th  of  July,  1787,  be- 
tween the  original  States  and  the  people  and  States  of  the 
territory  northwest  of  the  Kiver  Ohio.” 

1 S.  & C.,  2 Ed.  51. 

1818  August  26. 

Constitution  of  Illinois,  adopted  at  Kaskaskia,  L.  1819, 
App.  p.  1. 

“The  people  of  the  Illinois  Territoiy,  having  the  right  of 
admission  into  the  general  government  as  a member  of  the 
LTnion,  consistent  ivith  the  constitution  of  the  United  States,  the 
ordinance  of  Congress  of,  1787,  and  the  latv  of  Congress  ap- 
proved April  18,  1818,  entitled  ‘An  Act  to  enable  the  people 
of  the  Illinois  Territory  to  form  a constitution  and  State 
government,  and  for  the  admission  of  such  State  into  the 
Union  on  an  equal  footing  with  the  original  States,  and  for 
other  purposes;’  in  order  to  establish  justice,  ]n’omote  the 
welfare,  and  secure  the  blessings  of  liberty  to  themselves  and 
their  posterity,  do,  by  their  representatives  in  convention, 
ordain  and  establish  the  following  constitutmn  or  form  of  gov- 


(M-niuoiii,  and  do  inutiially  agToe  willi  (‘a(!h  other  to  1‘oi’ni  tli<*in- 
selves  into  a free  and  independent  State,  by  the  name  of  the 
State  of  Illinois.^’ 

1 S.  & C.,  2 Ed.  55. 

1818  l)eeeni])er  o.  Eesolution  of  Congresis  declaring'  the  admis- 
sion of  the  State  of  Illinois  into  the  Union.:  Reciting  as  fol- 
lows : 

“Which  constitution  and  state  government,  so  formed,  is 
republican,  and  in  conformity  to  the  principles  of  the  articles 
of  compact  between  the  original  states  and  the  people  and 
states  in  the  territory  northivest  of  the  river  Ohio,  passed  on 
the  thirteenth  day  of  July,  one  thousand  seven  hundred  and 
eighty-seven/’ 

3 U.  S.  Stat.  at  large,  p.  536. 

1821  IT.  S.  Land  Survey  made  by  Surveyor  General  Walls  meand- 
ered the  Des  Plaines  river,  and  described  in  the  field  notes 
the  Chicago  portage  as  the  ‘Siead  of  navigation.” 

1838  Dec.  4.  Message  of  Governor  Duncan  to  Illinois  Legislature 
quotes  this  provision  of  the  Ordinance  of  1787,  and  says  (after 
referring  to  the  wet  and  overflowed  river  bottoms  of  the  States, 
especially  itlie  Mississippi,  Illinois  and  Wabash)  ‘‘The  rapidly 
increasing  commerce  on  these  rivers  requires  an  immediate 
improvement  of  their  channels,  and  as  the  United  States  are 
bound  to  keep  them  open,  by  an  agreement  in  the  Articles 
of  Cession,  and  with  the  Governments  of  Ohio,  Indiana  and 
Illinois,  in  the  following  article  of  the  Ordinance  of  1787, 
which  was  required  to  be  made  a part  of  the  Constitution  of 
those  'States;  to  wit: 

“Article  IV.  The  navigable  waters  leading  into  tlie  Missis- 
sippi, etc.”  (quoting  same),  “and  as  those  two  rivers,  the 
Wabash  and  Illinois  are  recognized  to  be  the  waters  alluded 
to  and  as  the  United  States  lias  ])rovided  for  improving  the 
carrying  places  between  them  and  the  lakes,  there  can  be  no 
doubt  when  properly  informed  of  the  importance  and  necessity 
of  such  good  faith,  and  immediately  cause  every  obstruction 
to  be  removed  from  their  channels, — I would,  therefore,  recom- 
mend that  the  subject  be  laid  before  Congress  at  its  present 
session.”  (111.  Senate  Journal  1838-9,  p.  12). 

THE  ORDINANCE  OF  1787,  AND  THE  LEGISLATION  PURSUANT  THERETO, 
PRESERVED  THE  NAVIGABLE  CHARACTER  OF  THE  STREAM  AS  IT  EX- 
ISTED IN  1787. 

The  provision  of  the  Ordinance  of  1787  is  as  follows: 

“xirticle  IV.  * * * «=  navigable  waters  leading 

into  the  Mississippi  and  Saint  Lawrence,  and  the  (Tirrying 


758 


|)Ia('(*.s  l)(‘twc‘eii  tlio  same,  sliall  he  eommori  higliways,  and  for- 
ever f]‘ee,  as  well  to  tlie  inliabitants  of  tlie  said  territory  as  to 
the  citizens  of  the  Ilniited  States,  and  those  of  any  other  States 
that  may  be  admitted  into  the  (V)nfederacy,  without  any  tax, 
impost,  or  duty  tlierefor. ” 

1 Starr  & (hirtis,  2 ed.  45  : U.  S.  Rev.  Stat.,  2 ed.  1878,  p.  15. 

The  evidence  is  clear  tliat  in  1787  and  for  over  a century  l)efore, 
and  thenceforward  to  tlie  admission  of  Illinois  into  the  Union  in 
1818,  the  stream  was  navigated  by  the  forms  of  navigation  then 
in  use. 

Schoolcraft  says  upon  this  : 

“The  principal  points  at  which  the  waters  of  the  Mississippi 
river  communicate,  by  interlocking  rivers  and  ])ortages,  with 
the  lakes,  are  the  following,  proceeding  from  south  to  north, 
namely, 

1.  By  the  Illinois  and  Chicago  Creek  (with  Lake  Michigan.) 

2.  By  the  Wisconsin  and  Fox  Rivers  (with  Green  Bay.) 

8.  By  the  Chippewa  and  Mushkee  (or  Mauvais)  Rivers 
(with  Lake  Superior.) 

4.  By  the  St.  Croix  and  Burntwood  (or  Brule)  Ravers  (do).  - 

5.  By  the  Savanne  and  St.  Louis  Rivers  (do). 

“The  routes  by  the  Illinois,  and  by  the  Wisconsin,  were 
first  laid  open  by  French  enterprise,  and  have  been  used  for 
canoes  and  flat-bottomed  boats  in  their  natural  state,  and 
irithoiit  any  practical  improvement  ivliicli  as  yet,  facilitates 
the  communication,  about  a hundred  and  sixty  years.  They 
are  so  familiar  in  pur  geography,  have  been  so  much  explored, 
and  are  so  well  appreciated,  as  prominent  points  for  effecting 
canal  and  railroad  routes,  that  it  is  only  to  be  desired  that 
early  and  efficient  measures  should  be  taken  for  opening 
them.  ’ ’ 

(Schoolcraft,  “Expedition  to  the  Sources  of  the  Missis 
sippi,’’  Introductory  to  Exploration  of  the  St.  Croix  and 
Burntwood  Rivers,  p.  121,  1834). 

The  entire  range  of  historical  evidence  concerning  navigation 
assembled  elsewhere,  places  it  beyond  debate  that  the  stream  was 
navigated  at  that  period. 

In  Smith’s  History  of  Wisconsin  the  history  of  the  connection 
of  these  streams  is  summed  up  as  follows: 

“ L\t  this  time  (1718)  the  three  great  avenues  from  the 
St.  Lawrence  to  the  Mississippi  were,  one  by  the  way  of  the 


r 


759 

Fox  and  \Vis(‘oiisin  rivers,  one  bt)  ivdij  of  (Jlneofjo,  and  one 
by  tlie  way  (d*  the  Miami  of  the  Lakes,  wlien,  after  ('rossin^’  tli(‘ 
portage  of  three  leagues  over  the  snnnnit  level  a shallow 
stream  led  into  the  AVabash  and  Ohio.’  Ft  is  therefore  a[)i)ar- 
ent  tliat  it  was  one  of  the  liigliways  referred  to  in  the  Oi'di- 
nanee  of  1787,  and,  indeed,  among  the  most  favored,  on  acc'onnt 
of  file  short  portage  between  the  two  rivers.” 

The  Moniello,  20  AA^all.,  440;  Opinion  by  Air.  Justice  Davis. 

I 

THE  ORDINANCE  AND  THE  LEGISLATION  IN  CONFIRMATION  THEREOF  MUST 
BE  CONSTRUED  ACCORDING  TO  ITS  HISTORY  AND  INTERPRETED  AC- 
CORDING TO  THE  MEANINGS  THEN  GIVEN  ITS  TERMS. 

Referring  to  the  foregoing  summary  of  legislation,  we  submit 
that  the  Ordinance  and  the  legislation  in  confirmation  thereof 
must  be  construed  by  its  history  and  interpreted  according  to  the 
meanings  then  given  the  terms. 

A'Vhen  construed  according  to  its  history  and  that  of  the  times, 
it  is  clear  that  at  that  time  (1787)  and  for  over  20  years  thereafter 
river  navigation  was  carried  on  by  batteaiix,  Durham  boats,  Alack- 
inaw  boats  and  ‘‘canoes,”  which  latter  frequently  carried  many 
men  and  much  goods.  The  facts  that  in  1807  steamlioats  were  in- 
vented and  in  1825  the  first  steamlioat  ascended  the  Illinois  changed 
the  art  of  navigation,  but  did  not  change  the  law  or  abrogate  the 
ordinance  or  oliliterate  or  vacate  the  highway  which  had  existed 
all  those  years. 


II. 

THE  ORDINANCE  HAS  A TRIPLE  ASPECT. 

(1)  It  is  a dedication  of  the  stream  as  a highway  by  the  United 
States  of  America  which  was  the  proprietor  of  the  stream. 

(2)  It  is  a conipact  among  the  States  respecting  the  use  of 
that  highway,  and  solemnly  agreeing  that  the  highway  shall  for- 
ever be  preserved. 

(3)  It  is  a piece  of  legislation  enacting  a law  that  this  highway 
shall  forever  be  preserved. 

The  attempts  to  get  rid  of  (2)  the  compaci,  and  (5)  the  legisla- 
tion, leave  in  full  force  and  effect  (1)  the  dedication  of  the  higJui'ag. 


7(;() 


nr. 


TJfK  FAlLUJ{i:  OF  THE  (CONTENTIONS 


CONTRA  TO  REACH  THE  SUBJECT. 


Tile  subject  wliieli  we  liave  placed  at  the  head  of  this  portion 
of  our  brief,  and  which  is  of  controlling  importance  is: 

The  navigation  clause  of  the  Ordinance  of  1787,  and  the 
re-enactment  and  confirmation  thereof. 

1.  Even  if  all  that  has  been  suggested  contra  as  to  the  Ordi- 
nance of  1787  were  entirely  correct,  there  still  remains  the  Act  of 
August  7,  1789,  by  the  new  Federal  Government  under  the  Con- 
stitution whose  preamble  declares  that  it  is  passed  ‘On  order  that 
the  Ordinance  may  continue  to  have  full  effect;’’  the  treaty  of 
1795;  and  the  Acts  of  1796,  and  1804  expressly  establishing  and 
preserving  the  ivater  highivay. 

2.  If  it  were  established  that  the  Ordinance  was  not  now  laiu, 
and  not  binding  on  Illinois,  and  that  the  State  has  and  ahvays  had 
the  right  and  poiver  to  repudiate  it,  its  effect  as  a dedication  of 
a highway  by  the  proprietor  would  remain:  and  the  State  of  Illi- 
nois never  has  repudiated  the  Ordinance  and  never  has  vacated 
the  dedication. 


IV. 

Those  cases  in  the  United  States  Supreme  Court,  which  say  the 
Ordinance  is  not  binding,  began  in  the  period  when  the  anti-slavery 
conflict  was  imminent,  and  were  the  outgrowth  of  that  conflict. 
The  Ordinance  contained  an  anti-slavery  clause  and  this  clause  was 
liable  to  be  drawn  into  conflict  with  the  federal  fugitive  slave  law. 
There  was  then,  therefore,  as  in  the  Dred  Scott  case,  a tendency  by 
the  court  to  go  outside  the  specific  question  involved  and  deliver 
opinions  intended  to  forestall  such  conflict.  The  detailed  review 
of  these  cases  which  follows  shows  that  in  no  case  was  the  validity 
of  the  Ordinance  involved.  The  decisions  of  the  United  States  Su- 
preme Court  which  say  (1)  that  the  Ordinance  is  not  binding  were 
bridge  cases  and  dam  cases,  i.  e.,  cases  of  bridges  or  dams  author- 
ized by  statutes.  These  cases  usually  also  say  (2)  that  the  Ordi- 


7f;i 

iiaiu'o  (Iocs  iiof  forbid  l)ridfjiuf/,  or  (1()(‘S  not  foi-hid  tlio 

stream  when  authorized  hy  slailui(^  of  the  Stale. 

The  lat'ter  ])oinit  is  all  that  is  deeided  by  those  eases.  All  else  in 
those  eases  is  e.r/ra  judicial  in  origin,  and  inadvertent  iu  repetition. 


V. 

THE  CONTENTIONS  CONTRA  REVIEWED. 

Aside  from  a bald  reliance  on  tlie  dictum  of  Cliief  Justice 
Tanbv  in  tlie  Stra.der  case  in  10  How.,  wliicli  is  elsewhere  discussed, 
the  argmnent  on  principle  against  tlie  controlling  effect  of  this 
legislation  lias  nsnally  been  presented  as  follows : 

^‘First  Contention  Contra.  That  the  ordinance  is  not  in 
force  as  laiv  in  Illinois,  because  Illinois  ivas  admitted  to  the 
Union  on  an  equcdity  with  the  original  States,  and  so  could  not 
he  hound  hy  a compact  not  applying  to  the  original  State.’’ 

REPLY. 

1.  The  original  States  themselves  were  hound  hy  the  ordinance 
the  same  as  the  neiv  territory. 

‘Ht  is  hereby  ordained  and  declared  by  the  authority  afore- 
said that  the  following  articles  shall  be  considei'ed  as  articles 
of  compact  between  the  original  States  and  the  people  and^ 
States  in  said  territory,  and,  forever  remain  unalterable , unless 
hy  common  consent,  towit:” 

This  binds  the  original  States  ecpially  with  the  new  ones.  The 
admission  of  Illinois  on  an  equality  with  the  original  States  did  not 
undo  this,  because  this  apx)lied  to  the  oilginal  States,-  and  each  new 
State  as  it  was  added  to  them,  as  well  as  to  Illinois. 

The  language  of  the  act  of  admission  is: 

Shall  be  admitted  into  the  Union  upon  the  same  footing 
with  the  original  States  in  all  respects  whatever.” 

Tlie  same  footing  with  the  original  States  was  maintained  l)y 
maintaining  the  Ordinance,  because  it  bound  both  the  original 
States  on  the  one  side  and  Illinois  on  the  other.  The  original 
States  could  not  abrogate  the  permanent  provisions  of  the  Ordi- 
nance without  the  consent  of  Illinois,  and  Illinois  could  not  abrogate 
them  without  the  consent  of  the  original  States  (and  the  new 


7()li 

States  as  siu-eessively  added  tliereto).  This  could  l)e  done  (1)  by 
Mie  approval  of  the  Illinois  constitution  by  Congress — or  (2)  ])y 
the  approval  by  the  Federal  Government  of  State  legislation,  and 
(2)  vice  versa. 

Iteply  2.  Exact  and  literal  equality  was  not  intended  and  does 
not  exist  between  any  two  States  and  is  impossible.  E(juality  in 
rank  and  sovereignty  is  intended  and  this  is  not  incompatible  witli 
the  navigation  elaiise  of  the  Ordinance. 

The  States  carved  from  the  Northwest  Territory  are  equal  to 
the  others  ‘inasmuch  as  each  has  by  its  own  voluntary  will  estab- 
lished its  own  government  and  has  the  power  to  alter  it.” 

1 McLean  344-349. 

Second  Contention  Contra.  That  the  Ordinance  of  1787  does 
not  l)ind  Illinois,  because  it  was  not  voluntarily  adopted  1)y  her 
after  she  her  a me  a State  in  the  Union. 

REPLY. 

1.  Tliis  second  contention  contra  is  itself  a corollary  from  the 
first  and  falls  with  the  first.  The  underlying  thought  in  both  is 
that  of  unlimited  State  sovereignty,  viz. : that  the  State,  by  becom- 
ing a State,  suddenly,  ipso  facto,  ceased  to  be  under  obligations, 
and  therefore  must  re-enact  for  itself  the  Ordinance  of  1787  in 
order  that  it  should  have  any  vitality.  But  as  we  have  seen,  the 
Ordinance  bound  the  original  States  and  Illinois  equalh^  when  a 
territory,  and  in  becoming  a State  and  entering  upon  an  equal 
footing  with  the  other  States,  Illinois  did  not  cease  to  be  governed 
by  the  Ordinance,  because  the  original  States  were  governed  by  it 
also. 

2.  We  reply  further  that  the  enabling  act  required  that  the 
new  State  constitution  should  be  ‘‘not  repuynant  to  the  Ordinance 
of  1787:” 

That  the  new  constitution  of  1818  by  its  preamble  recited  that  : 

‘Mdie  people  of  Illinois  territory  having  the  right  of  admis- 
sion to  the  general  government  as  a member  of  the  Union, 
consistent  with  the  Constitution  of  the  U.  S.  the  ordinance  of 
1787,  and  the  law  of  Congress  approved  April  18,  1818,  * * * * 
do  ordain  and  establish  the  following  constitution.” 


7G3 


Tliat  the  resolution  ot*  (h)Hgress  of  Dec'cunbei'  3,  IHIS,  a(liiiittiri<^ 
Illinois  recites  that  its  ('onstitution  is  ‘‘in  conformity/  to  the  ])rin- 
chples’^  thereot*. 

This  amounted  to  (1)  the  creation  of  a condition,  and  (3)  the 
acceptance  of  the  condition  and  (3)  a ratification  of  the  acceptance; 
and  made  the  ordinance  a voluntarily  accepted  part  of  tlie  law  of 
Illinois,  as  much  as  if  a year  later  Illinois  liad  expressly  re-enacted 
it. 

3.  The  State  of  Illinois,  by  its  earlist  decisions,  expressly  de- 
cided that  the  navigation  clause  of  the  Ordinance  was  the  law  of 
Illinois.  This  was  a declaration  of  its  law  and  policy;  and  made 
the  laiv  for  the  State  upon  the  subject.  Its  subsequent  govern- 
mental and  legislative  acts  declaratory  of  its  policy  (which  are 
elsewhere  cited)  confirmed  this. 

People  V.  City  of  St.  Louis,  10  111.  (5  Gilni.)  351. 

This  case  expressly  affirmed  that  the  Ordinance  was  law,  and 
said  of  its  guaranty  of  free  navigation : 

“This  guaranty  of  rights  to  the  citizens  of  other  States,  al- 
though made  before  the  creation  of  any  of  the  States  through 
or  between  which  it  flows,  may  be  construed  expressly  as  if  it 
were  a grant  made  subsequent  to  or  at  the  time  of  their  forma- 
tion. The  Ordinance  itself  does  not  declare  the  Mississippi 
liiver  to  be  a common  highway  and  forever  free  to  all  the  Oti- 
zens  of  the  Union,  but  the  navigable  waters  leading  into  it. 
This  common  right  of  free  navigation  of  that  river  ivas  coyi- 
sidered  as  already  existing,  and  the  extent  and  effect  of  that 
right  may  he  understood  from  the  provisions  made  in  relation 
to  the  tributaries , as  (dl  were  undoubtedly  intended  to  be  placed 
on  the  same  footing.'' 

This  decision  established  the  Ordinance  to  be  a ])art  of  the  law 
of  Illinois  so  far  as  it  relates  to  the  tributaries  of  the  Mississip])i, 
and  the  tributaries  of  the  St.  Lawrence.  It  was  the  exact  i)oint 
decided  and  the  basis  and  point  of  the  decision,  which  holds  that 
the  navigation  clause  of  the  Ordinance  is  to  be  construed  “pre- 
cisely as  if  it  were  a grant  made  subsec|uent  to  or  at  the  time  of 
the  State’s  formation.” 

And  the  attempt  of  the  city  of  St.  Louis  to  fill  up  the  narrow 
and  only  occasionally  navigable  Illinois  channel  of  the  Mississippi 


7 ( > 

was  (Mijoiiied  and  pi-eventod  l)y  the  Supi-eine  Court  in  the  enforee- 
inent  of  this  raght. 

Thud  Contention  Contra,  viz.,  that  the  Ordinance  of  3 787  was 
])assed  l)y  the  old  Congress  of  tlie  Confederacy,  and  that  when  the 
old  Confederacy  ceased  to  exist  the  Ordinance  ceased  to  liave  any 
effect;  that  it  is  not  an  Act  of  the  present  Congress  under  the 
(\)nstitution  of  1789,  and  is  therefore  worthless. 

REPLY. 

1.  ffhis  contention  ignores  the  Act  of  Angust  7,  1889,  by  the 
new  Congress  under  the  constitution  of  1789  at  its  first  session, 
l)assed  for  the  express  purpose  of  continuing  the  Ordinance  in  full 
force  and  effect. 

2.  Again,  the  Treaty  of  Greenville  secured  the  right  of  free 
passage  by  land  and  water  from  the  mouth  of  the  Chicago  Eiver 
to  the  commencement  of  the  portage  between  that  river  and  the 
Illinois  and  down  the  Illinois  Eiver  to  the  Mississippi.  This  was 
an  act  of  the  new  government  in  the  exercise  of  its  highest  power, 
the  treaty  inaking  power  (U.  S.  Const.,  Art.  VI)  and  it  amounts 
to  an  express  establishment  of  the  highway  by  these  rivers  and  the 
carrying  place  between,  the  nature  and  extent  of  which  is  else- 
where discussed  under  the  heading  Chicago  Portage.”  The  Act 
of  May  18,  1796,  providing  for  the  sale  of  lands  in  this  territory, 
re-enacts  the  lorovision  by  'Section  9 that  ‘^all  navigable  rivers 
within  the  territory  shall  be  deemed  to  be  and  remain  public  high- 
ways.” The  Act  of  March  26,  1804,  again  provides  that  ^^all  the 
navigable  rivers,  creeks  and  waters  within  the  Indiana  territory 
(of  which  Illinois  was  then  part)  shall  be  deemed  to  be  and  remain 
public  highways.” 

3.  The  Act  of  February  3,  1809,  setting  aside  the  Illinois  terri- 
tory, provided  that  the  inhabitants  thereof : 

Shall  be  entitled  to  and  enjoy  all  and  sigular  the  rights, 
privileges  and  advantages  granted  and  secured  to  the  people 
of  the  territory  of  the  United  States  northwest  of  the  Eiver 
()hio  by  said  Ordinance.” 

These  Acts  of  1789,  1795,  1796,  and  1804  (as  well  as  the  Acts  of 
1818  relative  to  the  admission  of  the  State),  expressly  re-enact  the 
navigation  provision  of  the  Ordinance. 


4.  44ioso  were  Acts  ol*  the  new  ^overninent  under  lli(‘  n(;w 
(\)nslitution  dealing  witli  its  own  property  wliieli  it  had  acrjiiiraHl 
from  the  several  different  states,  and  for  wliieh  it  had  paid  a 
valuable  eonsideration'  by  assuming  the  debts  of  the  different 
states,  and  they  were  valid  exercises  of  the  power  conferred  upon 
the  new  government  to  regulate  interstate  commerce.  Furthei-, 
they  were  an  exercise  of  the  power  conferred  by  Article  4,  Section  3, 
Clause  2,  of  the  Constitution  of  the  U.  S.,  viz. : 

‘‘The  Congress  shall  have  power  to  dispose  of  and  maAc 
all  needful  rides  and  regulations  respecting  the  territory  or 
other  property  belonging  to  the  United  States.” 

We  have  recently  discovered  in  the  insular  cases  that  this  is  a 
great  and  far  reaching  power. 

But  the  cases  on  the  Ordinance  wall  be  searched  in  vain  for  any 
indication  that  this  poiver  teas  ever  brought  to  the  attention  of  any 
of  the  courts  which  have  heretofore  construed  the  Ordinance. 

AVe  are  now  appl^dng  it  to  the  several  acts  of  the  new  Congress 
re-enacting  the  Ordinance. 

If  the  Ordinance  had  ceased  to  have  any  manner  of  affect,  these 
re-enactments  of  it  by  competent  authority  establish  tlie  laiv  of 
the  navigation  clause  beyond  dispute. 

5.  The  suggestion  that  the  Ordinance  ceased  to  have  validity 
because  the  Government  which  re-enacted  it  had  been  reconstituted 
by  a neiu  constitution  is  a solecism  in  constitutional  and  interna- 
tional law.  If  one  principle  is  better  settled  than  another  in  this 
field  of  jurisprudence  it  is  “that  no  political  change  in  a govern- 
ment annuls  a compact  made  with  another  sovereign  ]>ower  or  with 
individuals.” 

(1  McLean,  345.) 

The  sacredness  of  national  obligations  is  not  a thing  that  can 
])e  trifled  out  of  existence  hy  a change  in  constitution.  AVhen  the 
United  States  took  over  the  Phillippines,  it  took  them  subject  to 
such  obligations  as  the  pre-existing  government  had  lawfully  placed 
thereon.  When  Austria  recently  took  over  and  annexed  Bosnia 
and  Herzegovina,  it  took  them  subject  to  such  o})ligations  as  the 
})reviously  existing  government  had  lawfully  placed  thereon.  When 
the  German  Umpire  took  over  Alsace  and  Lorraine,  it  took  them 


subject  to  sucli  obligatioiiiS  as  the  Frencli  Empire  had  previously 
hiwrully  ])laced  tliereou.  Wlieri  tlie  form  of  Government  for  tlie 
Illinois  Territory  was  changed  to  a 'State  Government,  the  new 
(lovermnent  received  the  territory  charged  with  all  the  permanent 
obligations  laid  upon  it  by  the  Ordinance  of  1787  exce|)t  such  as 
wei-e  ohligated  l)y  common  consent.  The  exception  consists  of  the 
slavery  clause.  The  other  permanent  i)rovisions  remained  in  force. 

This  principle,  maintained  by  McLean  J.,  (1  McLean,  345),  that 
‘Mo  political  change  in  a government  annuls  a contract  made  with 
another  sovereigm  power  or  with  individuals,”  is  sustained  by  all 
the  authorities  on  international  law.  Chancellor  Kent  says: 

“And  it  is  well  to  be  understood,  at  a period  when  altera- 
tions in  the  constitutions  of  governments,  and  revolutions  in 
states,  are  familiar,  that  it  is  a clear  })osition  of  the  law  of 
nations,  that  treaties  are  not  affected,  nor  positive  obligations 
of  ang  kind  with  other  powers,  or  with  creditors,  iveakened 
by  any  such  mntadions.  A state  neither  loses  any  of  its  rights, 
nor  is  discharged  from  any  of  its  duties,  by  a change  in  the 
form  of  its  civil  government.  The  body  politic  is  still  the 
same,  though  it  may  have  a different  organ  of  communication. 
So,  if  a state  should  be  divided  in  respect  to  territory,  its  rights 
and  obligations  are  not  impaired;  and  if  they  have  not  been 
apportioned  by  special  agreenient,  those  rights  are  to  be  en- 
joyed, and  those  obligations  fulfilled,  by  all  the  parts  in 
common.  ’ ’ 

1 Kent,  Com.,  12th  ed.,  foot  page  28. 

Mr.  TIali.  in  his  Oxford  treatise  on  International  Law  says : 

“Thus  treaties  of  alliance,  of  guarantee,  or  of  commerce 
are  not  binding  upon  a new  state  formed  by  separation,  and 
it  is  not  liable  for  the  general  debt  of  the  parent  state;  but 
it  has  the  advantages  of  privileges  secured  by  treaty  to  its 
]:)eople  as  inhabitants  of  its  territory  or  part  of  it,  such  as  the 
right  of  navigating  a river  running  through  other  countries 
upwards  or  downwards  from,  its  frontier;  it  is  saddled  with 
local  obligations,  such  as  that  to  regulate  the  channel  of  a 
river,  or  to  levy  no  more  than  certain  dues  along  its  course ; 
and  local  debts,  whether  they  be  debts  contracted  for  local 
objects,  or  debts  secured  upon  local  revenues,  are  binding 
upon  it.” 

Hall,  International  Law,  3d  ed.  (Oxford,  1890),  96. 

President  MMolsey  enunciates  the  same  principle  thus: 

“A  state  is  a moral  person,  capable  of  obligations  as  well 
as  rights.  These  relations  continue  after  it  has  passed  through 


707 


a vJunifjc  of  constitution , i'oi*  noiliwitlistiuulin^'  tli(‘  (‘li{in^>o  tli(; 
stale  may  still  pi'oserve  its  attributes  and  riimdioris.  No  act 
of  its  oirn  cull  annitiilutc  an  olitif/ation  to  another  state;  and 
its  rig’lits  still  eontinue,  unless  its  forni'er  eonstitutien  et  ^ov- 
erunient  was  the  ('ondition  on  wliieli  the  ohiig'ations  of  otluu* 
states  towards  it  were  founded.  The  general  rule  tlien,  as  all 
admit,  is,  that  rights  and  o])ligations  survive  a change  of 
government  or  a revolution.  'So  rvlien  a,  nation  separates  into 
parts,  or  unites  with  another  state  to  form  a new  wliole,  it 
cannot,  even  by  such  a process,  which  destroys  or  modifies  its 
existence,  divest  itself  of  its  obligations d' 

Woolsey’s  International  Law,  Sec.  88. 

The  classic  expression  of  this  principle  in  American  affairs 
emanated  from  our  first  Secretary  of  State,  Thomas  Jefferson. 
in  discussing  the  effect  of  the  change  in  the  French  government 
upon  existing  treaty  rights  and  obligations,  Secretary  of  State 
Jefferson  said,  in  response  to  the  questions  submitted  by  Presi- 
dent Washington. 

‘‘I  consider  the  people  who  constitute  a society  or  nation 
as  the  source  of  all  authority  in  that  nation,  as  free  to  trans- 
act their  common  concerns  by  any  agents  they  think  proper, 
to  change  these  agents  individually,  or  the  organization  of 
them  in  form  or  function,  whenever  they  ] dense.  Consequently 
the  treaties  between  the  United  States  and  France  Avere  not 
treaties  between  the  United  States  and  Louis  Capet,  but  be- 
tween the  hvo  nations  of  America  and  France,  and  the  nations 
remaining  in  existence,  though  both  of  them  have  since 
changed  their  forms  of  government,  the  treaties  are  not  an- 
nulled by  these  changes.” 

Wharton,  International  Law  Digest,  foot  ]>age,  47,  Sec. 
187. 

See  also  oi)inion  of  doiix"  (ffjrNiw'  Adams,  Secretary  of 
State  (1818),  1 Atoores  Digest  of  Intel-national  Law, 
Sec.  9(). 

Our  government  has  enforced  this  ])rincii)le  in  its  relations  with 
other  powers : 

‘‘A  successful  revolution  does  not  relieve  the  country  revo- 
lutionized from  lialiility  on  its  ])rior  engagements  to  foreign 
states.  (Mr.  Fish,  Secretarv  of  State,  to  Mr.  Bassftt,  Feb. 
21,  1877.  Miss.  Inst.  Hayti).” 

1 Moore’s  Digest  of  International  Imws,  p.  250. 


'riiis  view  Avas  presented  in  the  trial  court,  hut  tlie  court  accepted 
ll!(‘  language  ot  Ala.  Justice  ATaorudek  in  Dixon  v.  The  People, 
1()8  111.,  179,  and  of  the  Federal  Court  in  Htroder  v.  (iroliom,  51 
U.  S.  (10  How.)  82  and  in  Sands  v.  Manistee  River  I mprovement 
Com])anp,  123  U.  S.,  288,  as  final;  and  when  attention  was  called 
to  the  fac't  that  AIii.  fJusTicE  McLean  in  the  Strader  case  had  cor- 
rei'tly  declared  that  the  opinion  of  Taney  on  the  subject  Avas  extra 
judicud;  and  that  AIr.  Justice  Catron  had  correctly  called  it  an 
obiter  dictnrn  and  ''uncalled  for,”  the  reply  was  a citation  of 
People  y.  Read,  233  111.,  351,  at  354,  as  amounting  to  an  exclusion 
from  the  jurisprudence  of  Illinois  of  the  doctrine  of  obiter  dictum. 

Ihit  AA^e  respectfully  suhmit  that  the  doctrine  of  obiter  dictum  is 
as  much  a part  of  the  laAv  of  Illinois  as  any  other  of  the  doctrines 
relative  to  judicial  opinions. 

The  Lead  case  cites  the  Rhodes’  case,  227  111.,  328,  which  in  turn 
cites  the  Grronmies’  case,  158  111.,  492,  which  in  turn  cites  Ander- 
son’s Law  Dictionary,  355,  where  the  term  is  defined  and  a quota- 
tion is  made  from  a decision  hy  Cassoday,  J.  in  60  AVis.,  267.  But 
the  remainder  of  the  passage  there  cited  shows  that  the  learned 
author  and  judge  intended  no  modification  of  the  well  understood 
doctrine;  and,  the  decisions  of  this  court  shoAV  that  it  adheres  to 
that  doctrine  of  obiter  dictum  in  all  its  vigor.  Let  us  complete 
the  (juotations  made  hy  Dr.  xAnderson.  They  are  as  follows: 

"To  make  an  opinion  a decision  there  must  liaAm  heen  an 
application  of  the  judicial  mind  to  the  precise  question  neces- 
sary to  he  determined  in  order  to  fix  the  rights  of  the  parties. 
Therefore  the  Supreme  Court  has  never  held  itself  hound  hy 
any  part  of  an  opinion  which  was  not  needful  to  the  ascertain- 
ment of  the  question  between  the  parties. 

Carroll  v.  Lessee  of  Carroll,  16  Hoav.,  287  (1853)  Curtis 
J.;  6 AVheat  399. 

'The  ease  called  for  nothing  more;  if  more  wms  intended  by 
the  judge  who  delivered  the  opinion,  it  was  purely  obiter.’ 

United  States  v.  County  of  Clark,  96  IT.  S.,  218  (1877), 

Strong,  J.;  107  id.,  179.” 

In  the  Buchner  case  itself  Judge  Cassoday  also  said: 

"Besides  mere  obiter  dictum,  is  not  always  re])rehensihle. 
( )n  the  contrary,  some  of  the  most  sacred  canons  of  the  com- 
mon hiAv  have  their  oriyvn  in  the  mere  dida  of  some  Avise 


jiid^'os.  I'o  he  valuable,  'hou'cver,  Ihe/i/  must,  of  eo}irse,  he 

'rUjhtr 

And  in.  the  Carroll  (aiso  Mii.  Justice  Courtis  (juotes  ArARsiiAi.L. 
C.  A.,  to  tlio  same  effect  thus: 

‘‘  * In  Cohens  v.  Virginia,  6 Wheat.,  899,  this  court  was  uiucli 
pressed  with  some  portion  of  its  opinion  in  the  case  of  Mar- 
burg V.  Madison,  1 Cranch  (U.  S.)  137,  174.  And  Mr.  Chief 
Justice  M arshall  said  : ‘Mt  is  a maxim  not  to  he  disregarded 
that  general  expressions  in  every  opinion  are  to  he  taken  in 
connection  with  the  case  in  which  those  expressions  are  used. 
If  they  go  heyond  the  case  they  may  he  respected,  hut  ought 
not  to  control  the  judgment  in  a suhsequent  suit,  when  the 
very  point  is  presented.  The  reason  of  this  maxim  is  obvious. 
The  question  actually  before  the  court  is  investigated  with 
care,  and  considered  in  its  full  extent;  other  principles  which 
may  serve  to  illustrate  it  are  considered  in  their  relation  to  the 
case  decided,  but  their  possible  hearing  on  all  other  cases  is 
seldom  completely  investigated.”  The  cases  of  Ex.  p.  City 
Bank,  3 How.  (U.‘S.)  292,  and  Peck  v.  Jenness,  7 How.  (U.  S.) 
012,  are  an  illustration  of  the  rule  that  any  opinion  given  here 
or  elsewhere  cannot  be  relied  upon  as  a binding  authority 
unless  the  case  called  for  its  expression.  Its  weight  of  reason 
must  depend  on  what  it  contains.  ‘‘Carroll  v.  Carroll,  10 
How.  (U.  B.),  275  and  280.” 

In  Mayer  v.  Erhardt,  88  Ilk,  452,  this  court  quoted  with  approval 
the  foregoing  quotation  from  Chief  Justice  Marshall,  and  made 
it  the  basis  of  excluding  without  overruling  the  dicta  from  two 
earlier  Illinois  cases  and  decided  the  case  before  them  in  exactly 
the  opposite  way  from  which  this  dicta  called  for. 

In  Brotvn  v.  Coon,  30  111.,  243,  at  240,  this  court  applied  the  same 
rule  thus : 

‘Ht  is  a familiar  rule  of  criticism  in  regard  to  judicial  de- 
cisions, that  their  authority  arises  from  what  the  court  decides 
in  reference  to  the  facts  before  it,  rather  than  from  what  the 
judge  who  delivers  the  opinion  may  say  in  illustration  and 
support  of  the  ruling  of  the  bench.  Wlien  it  is  remembered 
that  judges  are  often  obliged  to  write  a hundred  opinions  per 
anuiim,  they  would  be  more  than  human,  if  they  did  not  occa- 
sionally use  expressions  of  a general  character,  whicli,  while 
perfectly  true  in  regai*d  to  the  case  before  them,  are  at  the 
same  time  incorrect  when  pushed  to  extremes  or  applied  to  a 
totally  different  state  of  facts.  The  very  learned  judge  (Chi. 
J.  Caton)  v/ho  wrote  the  opinions  in  the  cases  above  cited, 
was  little  liable  to  this  error.  In  the  many  hundred  pages 
from  his  pen  which  illustrate  our  reports  there  are  few  in- 


staiu'os  ill  vvlii(‘li  tlici  generality  of  tlie  expi'ession  needs  to  lie 
(|nalifi(‘(l  and  limited  by  the  nature  of  the  facds.  Hat  it  cannot 
he  denied  that  the  langnage  of  the  ofiinions,  in  the  cases  cited, 
in  r(‘gard  to  the  invalidity  of  deeds  like  tliat  now  liefore  the 
court  is  too  general  and  swx‘eping.  We  at  least  so  consider 
it,  and  wliile  we  ai'e  still  of  the  opinion  that  the  deeds  in 
those  cases  were  in()])er(itive,  as  regarded  the  homestead  rights 
they  were  not  ahsoliitely  void,  for  all  purposes  whatever.” 

FOURTH  OBJ  ECTTON . 

This  is  to  the  effect  that  the  Ordinance  does  not  prohibit  the 
aiitliorization  by  the  States  of  physical  obstructions  to  navigahle 
streams, — siicli  as  bridges  and  dams, — but  only  imposts  and  dis- 
criminations by  the  States. 


REPLY. 

(1)  This  dam  is  not  authorized  by  the  State.  Therefore  the 
rule  that  the  State  might  authorize  it  does  not  help  it. 

REPLY. 

(2)  The  Ordinance  ^‘insures  a highway  equally  open  to  all 
without  preference  to  any, — ^and  unobstructed  by  duties  and  tolls.” 

Field,  J.,  113  U.  S.,  205. 

It  leaves  the  policing  of  the  highway  as  to  physical  obstructions , 
to  the  States. 

(Bradley,  J.,  125  U.  S.,  1.) 

Therefore  'this  case  was  rightly  brought  in  the  iState  Court. 

NO  DICTA  ARE  PRODUCED  FROM  EITHER  FEDERAL  OR  ILLINOIS  COURTS 
CONSTRUING  OR  IN  ANY  WISE  LIMITING  THE  EFFECTS  OF  THE  ACTS 
OF  1796  AND  1804,  RE-ENACTING  THE  NAVIGATION  CLAUSE  OF  THE 
ORDINANCE  OF  1787. 

This  provision  of  those  Acts  has  never  been  passed  upon  by 
either  of  the  courts.  This  court  may  properly  without  reflecting 
upon  any  former  decision  of  its  own  or  that  of  the  Supreme  Court 
of  the  United  States,  decide  the  scope  and  effect  of  fliese  acts 
de  novo,  and  preserve  to  the  People  of  the  State  the  highway  which 
those  acts  guaranteed  to  them. 

But  it  is  plain  that  the  trial  court,  out  of  over  deference  to  this 


771 


conri  niul  tlio  Siiprome  (\)iirt  of  the  United  States,  lins  })res(*nt(;d 
to  tins  (H)iirt  tlie  responsibility  of  making*  the  initial  deeision  on 
that  subject. 

AVe  append  a summiary  of  the  cases  u])on  the  subjecd. 

ILLINOIS  CASES  ON  THE  ORDINANCE  OF  1787. 

The  adjudications  upon  the  Ordinance  in  Illinois  are  as  follows: 

EARLY  SLAVERY  CASES. 

1828  Phoebe,  a woman  of  color  v.  Jay,  1 111.  (Beecher’s  Breese), 
268. 

Trespass  for  assault.  Plea  that  the  plaintiff  w-as  an  in- 
dentured servant,  and  ‘‘that  in  order  to  compel  ]ilaintitf  to 
attend  to  and  perform  Ihe  duties  of  an  indentured,  «=  * * * 

he  had  necessarily  to  use  a little  force  and  beating*,  which  is 
the  same  trespass,  etc.,  * * * * 

“Several  replications  were  filed,  to  which  defendant  de- 
murred, and  the  demurrers  were  sustained,  and  judgment 
given  on  the  demurrers  for  the  defendant.  * * * * ^^0 

first  question  presented  by  this  case  is,  whether  the  ‘act  con- 
cerning the  introduction  of  negroes  and  mulattoes  into  this 
territory,  passed  17th  September,  1807,’  by  the  territory  of 
Indiana,  and  continued  by  the  territory  of  Illinois,  was  not  a 
violation  of  the  sixth  article  of  the  Ordinance  of  Congress, 
passed  13th  July,  1787,  for  the  government  of  the  territory  of 
the  United  States,  northwest  of  the  Ohio  river.  That  })ortion 
of  the  Ordinance  applicable  to  this  case,  reads  as  follows: 
‘There  shall  be  neither  slavery  nor  involuntary  servitude  in 
tlie  said  territory,  otherwise  than  in  the  punishment  of  crimes, 
whereof  the  party  shall  have  been  duly  convicted.’  ” 

The  court  then  recapitulates  the  tiurpose  of  the  Act  of  1807  con- 
cerning negroes,  and  says:  (Opinion  by  Loc^kwood). 

“If  the  only  (luestion  to  be  decided  was,  whether  this  law 
of  the  territory  of  Illinois  conflicted  with  the  Ordinance,  I 
should  have  no  hesitation  in  saying  that  it  did.  * * * * 

But  by  the  third  section  of  the  sixth  article  of  the  constitution 
of  this  state,  ‘Each  and  every  jierson  who  has  been  bound  to 
service  by  contract  or  indenture,  in  virtue  of  the  laws  of 
the  Illinois  territory  heretofore  existing,  and  in  conformity  to 
the  provisions  of  the  same,  without  fraud  or  collusion,  ishall 
he  held  to  a S])ecific  ])erformance  of  their  (‘on tracts  or  in- 
dentures, and  such  negroes  and  mulattoes  as  have  been  regis- 
tered, in  conformity  with  the  aforesaid  laws,  shall  serve  out 
the  time  appointed  by  such  laws.’  conclude 


that  a It  hone'll  tlio  act  of  tlio  tciahtory  in  relation  to  indenturing 
negroes  and  inulattoes,  was  originally  void,  yet  it  enumerated 
a des(*rii)tion  of  i)ersons  that  tlie  constitution  of  tliis  state  lias 
undertaken  to  fix  their  condition  in  life,  and  tlie  riglrts  they 
shall  possess  in  this  community.  * * * * liow- 

(‘ver,  urged  on  the  argument  of  this  cause,  that  the  people  of 
this  state,  wlien  they  assembled  in  convention,  were  not  ab- 
solutely free  and  independent,  and  at  liberty  to  adopt  what 
frame  of  government  they  chose,  for  they  were  controlled  by 
the  constitution  of  tlie  United  States,  and  hj  the  Ordinance 
of  1787.  * * * * Ordinance,  Jioivever,  is  no  donht 

still  hindhuj  upon  the  people  of  this  state,  unless  it  has  been 
abrogated  by  ‘common  consent.’  By  ‘common  consent,’  I 
understand  the  United  States,  and  the  people  of  this  State, 
and  whenever  they  shall  agree  that  the  whole,  or  any  part 
of  the  Ordinance  of  1787  shall  be  repealed,  it  will,  so  far  as  it 
affects  this  State,  become  a dead  letter.  The  people  of  this 
State,  by  recognizing  the  validity  of  the  indenturing  and 
registering  of  servants,  in  pursuance  of  the  act  of  1807,  before* 
referred  to,  gave  their  consent,  to  alter  so  much  of  the  Ordi- 
nance as  was  repugnant  to  the  constitution  of  this  State.  When 
the  constitution  of  this  State  was  presented  to  Congress,  in 
order  to  our  admission  into  the  Union,  the  attention  of  that 
body  was  called  to  that  clause  of  our  constitution  which  re- 
(]uires  that  registered  and  indentured  servants  shall  be  held 
to  serve  pursuant  to  said  act,  and  which  was  contended,  and 
if  I mistake  not,  was  conceded  to  be  a violation  of  the  Ordi- 
nance. Congress,  however,  admitted  this  State  into  the  Union 
with  this  constitutional  provision,  and  thereby,  I think,  gave 
their  consent  to  the  abrogation  of  so  much  of  the  Ordinance 
as  was  in  opposition  to  our  constitution. 

(1  111.,  B’s.  B.,  270,  271,  272.) 

The  court  then  proceeded  to  consider  the  goodness  of  the  pleas, 
carrying  the  replication  to  the  demurrer  back  to  the  pleas.  The 
court  held  that  the  pleas  were  insufficient  and  reversed  the  judg- 
ment in  favor  of  the  defendant,  with  leave  to  the  defendant  to 
amend  his  idea. 

In  (1836)  Nance  (a  girl  of  color)  v.  Howard,  1 111.  (B’s.  B.), 

212; 

(1836)  Boon  v.  Jidiet  (a  woman  of  color),  2 111.  (1 
Scam.),  258 ; 

(1836)  Choisser  v.  Hargrave,  2 111.  (1  Scam.),  317  ; 

(1836)  Sarah  (a  woman  of  color)  v.  Borders,  5 111.  (1 
Scam.),  341. 

the  court  re-affirms  the  decision  in  Phoebe  v.  Jay. 


773 


Tliesc  (‘jisc's  ihei-ofore,  liold  that  the  ( )r(liriariee  is  in  foree  except 
as  1o  tlie  slavery  clause,  and  that  the  slavery  clause  liad  l)een 
ahrog'ated  hy  the  (‘onunon  consent  thus  manifested. 

1S41  lUtUeif  V.  Cromn'cM,  4 (3  Scam.),  71. 

This  was  assumpsit  upon  a promissory  note,  the  consideration 
of  whi(4i  was  the  sale  of  a negro  girl  in  Illinois.  The  plaintiff 
recovered  judgment.  The  defendant,  appearing  hy  Abraham  Lin- 
(’OLN,  appealed,  and  cited  the  Ordinance  of  1787.  The  defendant 
had  pleaded  that  it  was  part  of  the  agreement  that  the  vendor 
should  produce  the  necessary  papers  and  indenture  to  bind  the 
girl,  and  that  the  same  were  not  produced  nor  demanded.  The 
couif.  held  that  the  note  was  without  consideration  and  void,  that 
it  is  a presumption  of  law  in  Illinois  that  every  person  is  free 
without  regard  to  color,  and  that  the  sale  of  a free  person  is 
illegal. 

1843  Willard  v.  The  People,  5 (4  Scam.),  461. 

Indictment  for  secreting  a mullato  slave  owing  service  to  a 
nii stress  in  Kentucky,  contrary  to  the  Criminal  Code  of  1839. 
The  count  inferentially  decided  that  the  taking  of  a slave  from  Ken- 
tucky to  Missouri  and  incidentally  passing  through  Illinois,  is  not 
prohibited  by  the  Ordinance  of  1787. 

1845  Jarroi,  a colored  man,  v.  Jarrot,  7 (2  Gilm.),  1. 

The  court  there  held  that  the  descendants  of  slaves  of  the  old 
French  settlers,  born  since  the  adoption  of  flie  Ordinance  of  1787, 
and  before  or  since  the  Constitntion  of  Illinois  was  'adopted, 
cannot  be  held  in  slaveiy. 

The  court  there  quote  the  case  of  Menard  v.  Aspasia,  5 Peters, 
510,  where  the  Missouri  court  had  held  the  same  way  and  the  Su- 
preme Court  of  the  United  'States  declined  jurisdiction,  but  said 
that  if  the  decision  had  been  against  Aspasia  they  might  have 
taken  jurisdiction.  The  court  also  quote  cases  from  Massachu- 
setts, Virginia,  Mississippi,  and  Indiana,  giving  effect  to  the  slav- 
ery provisions  of  the  Ordinance  of  1787. 

[These  cases  are  sufficient  to  illustrate  two  general  propositions. 
The  ordinance  dealt  with  slavery.  Illinois  was  originally  settled, 
in  the  southern  part  of  the  State,  by  people  from  Virginia,  Ken- 
tucky and  Southern  Indiana.  They  had  the  southern  view  of  the 


shiveiy  (iiiestion.  They  were  willing  to  get  rid  of  so  much  of  the 
Ordiuance  as  dealt  with  the  slavery  ([uestion.  The  Territory  of 
Indiana,  by  the  a(tt  of  1807  had  adopted  provisionn  concerning 
negroes  and  nmlattoes.  The  Constitution  of  1818  ratified  then 
existing  arrangements  under  tliait  act.  Congress  admitted  Illinois 
with  tliat  constitution,  declaring  that  it  was  in  conformity  to  the 
Ordinance  of  1787. 

It  palpably  was  not  in  conformity  to  the  Ordinance  of  1787,  and 
the  cases  which  we  liave  cited  plainly  say  that  it  is  not  a question 
of  conformity,  but  of  power.  “This' is  a question  of  power  and  not 
of  policy.  It  is  not  the  province  of  tliis  court  to  determine  whether 
it  was  politic,  just,  or  humane,  but  simply  whether  the  people  in 
convention  had  the  power  to  fix  the  condition  of  people  of  color 
thus  situated  at  the  adoption  of  our  Constitution.” 

Sarah  v.  Borders,  (4  Scam.),  341,  345. 

The  court  further  plainly  say  that 

“If  'the  only  question  to  be  decided  was  whether  this  law  of 
the  Territory  of  Illinois  conflicted  with  the  Ordinance,  I should 
have  no  hesitation  in  saying  that  it  did.” 

“From  the  decrees  of  the  Constitution  there  can  be  no  ap- 
peal, for  it  emanates  from  the  highest  source  of  power,  the 
sovereign  people.  * * * * 

“The  Constitution  can  establish  no  Tribunal  with  a power 
to  abolish  that  which  gave  and  continues  such  tribunal  in  ex- 
istence.” {Borders  case). 

As  on  all  other  questions,  the  same  decisions,  sometimes 
expressly,  sometimes  inferentially,  hold  that  the  Ordinance 
remained  in  force,  and  that  it  was  only  by  virtue,  first  of  the 
Act  of  1807,  2d,  the  constitutional  provision  of  1818,  Art.  6, 
Sec.  3,  and  the  ratification  thereof  by  Congress,  that  a “com- 
mon consent”  to  the  abrogation  to  that  extent,  concerning 
slavery,  was  brought  about.  The  rest  of  the  Ordinance  re- 
mained in  force.] 

The  story  of  the  unsuccessful  struggle  to  make  Illinois  a slave 
state  is  narrated  in  the  Life  of  Edward  Coles,  second  Governor  of 
Illinois,  by  E.  B.  Washburne  (Chicago,  Jansen,  McClurg  & Co., 
1882).  Without  going  further  into  this  branch  of  our  history,  we 
inay  refer  to  the  “History  of  the  Ordinance  of  1787,”  by  Governor 
Coles,  and  to  the  whole  line  of  these  early  decisions,  as  showing  how 
intimately  the  question  of  slavery  was  interwoven  with  the  force 
and  effect  of  the  Ordinance. 


/ i >) 


F.AULV  li.LlNOlS  (WSES  ON  I i E OliDI  N A N (’E  OF  1 7H7,  O'I'IIEE  ^1’ 1 1 A N SLAVEHY 
(WSES,  AND  OTIIEH,  'I'llAN  NAVIOATION  (^ASES. 

Ackless  v.  S('elx  right , Bec'clier’s  Breeso,  [>.  7(). 

“By  tlie  Ordinance  of  1787  hu't  two  of  the  snl)scribin^  wit- 
nesses to  a will  are  re(]iiired  to  prove  it,  and  a will  attested 
hy  three,  one  of  whom  is  a devisee  in  the  will  is  valid.” 
(ilead  Note.) 

Reynolds,  C.  d. — ”It  is  a sufficienf  answer  that  by  the  law 
wliich  governs  in  this  case  but  two  of  the  sul)scribing  wit- 
nesses are  required  to  establish  the  execution  of  a will,  and 
when  thus  proven  is  good  to  all  intents  and  purposes.”  (Will 
dated  Jan.  27,  1806;  death  of  testator,  1806;  his  heir  at  law  and 
first  devisee  died  before  majority,  in  1816.  Devisee  over  by  ex- 
ecutory devise  then  entered.  Ejectment  by  heirs  at  law  of  first 
devisee,  and  heir  of  tesfator  brought  in  State  Court.  Judg- 
ment for  defendant. 

The  Act  of  the  Legislature  of  Illinois  making  the  Register’s  cer- 
tificate of  the  purchase  of  land  at  the  IT.  S.  Land  Offices,  evidence  of 
title,  does  not  conflict  with  the  Ordinance  of  1787.  (On  the  Beaubien 
claim  to  the  S.  W.  Fractional  (Quarter  of  Section  10,  Townshi])  89. 
Range  1-t,  East, — the  site  of  Fort  Dearborn.) 

1837  M(  Connell  v.  Wilcox,  2 111.  (1  Scam.),  814,  870-7. 

1841  Fenny  v.  Little,  4 111.  (8  Scam.),  801. 

This  was  an  action  of  trespass,  to  which  4he  defendant  pleaded  in 
jirstification,  under  a landlord’s  distress  warrant.  The  plea  was 
held  good  on  denmrrei*,  and  on  a])i)eal  there  is  an  extended  dis- 
cusision  of  the  common  law  remedy  of  a landlord  u])on  a distress 
warrant.  The  court,  after  tracing  the  histoi-y  of  the  Territoi-y  and 
the  adoption  of  the  coimnon  law  to  the  fourth  year  of  James  1, 
with  the  three  exceptions  named  in  the  statute,  says: 

“That  ordinance  (of  1787)  contains  (‘ertaiii  ai4i(‘les  ol‘  com- 
l)act  between  the  original  states  and  the  i)eo})le  in  said  terri- 
tory, which  articles,  it  is  declared,  shall  forever  remain  un- 
alterable, unless  by  common  consent.  In  said  arti(*les,  it  is 
provided,  among  other  things,  that  the  irdiabitants  of  said 
territory,  shall  always  be  entitled  to  the  benefits  of  judicial 
])roceedings  according  to  the  course  of  the  common  law. 
* * * It  was  evidently  their  intention  to  secure  to  the 

inhabitants  of  the  territory,  the  benefits  of  the  common  law  as 
it  was  then  understood  and  expounded  by  the  (‘ourts  in 
America.  * * * yye  therefoi'e  of  the  opinion,  that 


as  the  law  now  stands  in  this  State,  a landlord  has  a right  to 
disti*ain  for  rent,  wkliout  i*eservdng  the  i)rivilege  in  tlie  lease. 

1S()8  V,  Boyles,  49  ]11.,  110. 

Widoiv’s  Share  of  Personal  Estate. 

Opinion  l)y  Lawkence,  J. 

‘‘Fi*oni  the  time  of  the  ordinance  of  1787  to  the  year  1845,  a 
widow  was  entitled  to  one-third  of  the  personal  property  ahso- 
Intely,  after  the  payment  of  debts,  even  thougli  the  husband  left 
(‘hildren  surviving.  This,  having  always  been  the  law  of  this  Ter- 
ritory and  State,  was  universally  known  to  our  people,  and  the 
share  of  the  widow  was  |)roperly  designated  as  ‘the  widow’s 
third.’  ’*  * * |3xit  the  revision  of  1845,  though  upon  an  excel- 

lent plan,  was  somewhat  hastily  executed  and  some  omissions  oc- 
curred. * # * 

“ But  this  omission  was  corrected  in  1847,  when  her  paramount 
right  to  a third  part,  after  payment  of  debts,  even  as  against  his 
children,  was  restored.  It  thus  appears  that  from  the  first  law 
upon  this  subject  in  1787,  to  the  present  time,  with  the  exception  of 
these  two  years’  omission,  wdiich  we  must  regard  as  accidental,  the 
wife  has  been  entitled  to  a share  of  the  personal  estate,  even  as 
against  the  children,  equal  to  one-third  part.” 

This  is  an  interpretation  of  the  provision  of  Section  2 of  the  Or- 
dinance “Saving  in  all  cases  to  the  Avidow  of  the  intestate  her 
third  part  of  the  real  estate  for  life  and  one- third  part  of  the  per- 
sonal estate;  but  this  law,  relative  to  descents  and  dower,  shall 
remain  in  full  force  until  offered  by  the  Legislature  of  the  dis- 
trict.” The  court  specifically  holds  that  that  provision  of  the  ordi- 
nance was  in  force  in  Illinois  until  altered  by  statute. 

1840  Sprayins  v.  Houghton,  3 111.  (2  Scam.),  377. 

The  court  held  that  every  Avhite  male  inhabitant  of  the  State, 
aged  21,  who  had  resided  in  the  State  six  months  immediately 
preceding  any  general  election,  is  entitled  to  vote. 

A judgment  had  been  rendered  against  a judge  of  election  for  a 
penalty  for  receiving  the  vote  of  a person  who  met  these  condi- 
tions, but  was  a native  of  Ireland  and  had  not  at  that  time  been 
naturalized.  The  judgment  was  reversed. 

In  reaching  this  conclusion  the  court  cited  the  provision  of  Sec^ 
tion  9 of  the  ordinance,  giving  representation  “For  every  five  hun- 
dred free  male  inhabitants,”  etc.  Although  it  restricted  eligibility 
lo  act  as  a re])resentative  to  citizens,  the  courts  say  (p.  393)  : 


777 


“It  is  of  iinj)()rtar.('(*  lioi-e  to  ascaotairi  wliotlioi*  tli(^  ()i‘(Jinari(‘(i  of 
17S7  })(M'inilt(Mi  rosidoiit  aliens  to  he  rciprescnilati ves  in  tlie  Terri- 
torial l.egislatnres,  and  to  vote  at  eleedions  for  r(;])resentatives. 

Under  this  nndenia])le  poli(*y,  and  after  it  liad  })een  prae- 
tieed  on  in  the  Illinois  Territory  for  a ])eriod  of  more  than  six 
years,  tlie  (\)nstitntion  of  Tllinois  was  formed,  and  the  provision 
relative  to  the  elective  franchise  ado})ted  (p.  895).  * * ^ 

evident  sense  in  which  it  (‘‘Inhabitant”)  is  employed  in  that  ordi- 
nance, and  the  subsequent  facts  which  followed,  and  have  uni- 
formly accompanied  its  emplo^yment,  from  its  incorporation  in  the 
Territorial  laws  of  the  northwestern  territory,  the  Acts  of  Con- 
gress for  the  admission  of  those  Territories  and  reception  into 
the  Union,  and  the  steady  and  uniform  rule  adopted  by  every  de- 
]:>artnient  of  the  Government  of  this  State,  without  a single  excep- 
tion up  to  the  present  hour,  should  be  conclusive  of  its  meaning 
(p.  409.” 

The  court  then  concluded  that  “resident”  in  the  Illinois  Statute 
of  1829  did  not  mean  “citizen”  any  more  than  “inhabitant”  did 
in  the  ordinance  of  1787. 

1879  People  ex  rel.  McCrea,  Collector^  v.  United  States  of  Amer- 
ica, 93  111.,  30. 

In  this  case  the  court  held  that  property  ac(piired  by  the  Federal 
Government  in  pursuance  of  the  Oonstitiition  within  the  State  of 
Illinois,  as  a means  of  carrying  on  the  Federal  Government  undei* 
the  Constitution,  was  not  subject  to  taxation  by  the  State.  The 
ordinance  of  1787  contains  the  i)rovision  in  Article  4 (the  same 
article  which  contains  the  navigation  clause,  and  in  the  sentence 
immediately  preceding  the  navigation  clause)  as  follows:  “No 
tax  shall  be  imposed  on  lands  or  ])roperty  of  the  United  States.” 

The  court,  Scott^  J.,  says : 

“Conceding  the  clause  of  the  ordinance  of  1787,  cited,  is  still  in 
force,  and  binding  on  the  State,  it  would  seem  to  be  an  absolute 
inhibition  u])on  Ilie  State  to  im])ose  any  tax  upon  lands,  the  prop- 
erty of  the  United  States,  no  matter  how  the  title  might  be  ac- 
(juired,  nor  for  what  pur})ose  held.  It  was  ordained  that  the  six 
articles  of  compact  between  the  original  States  and  the  People  and 
States  in  such  Territory,  and  forever  remain  unalterable  unless  by 
common  consent. 

“In  Phoehe  v.  Jay,  Breese,  268,  it  Avas  said,  the  ordinance  was, 
no  doubt,  binding  upon  the  people  of  the  States,  unless  abrogated 
by  common  consent.  By  ‘common  consent’  was  understood  to  be  by 
action  of  the  United  States  and  the  people  of  the  States  affected. 
(Congress,  having  admitted  Illinois  into  the  Union  with  the  con- 


stitution  adopted,  gave  eonseiit  to  tlie  abrogation  of  so  niucli  of 
the  oi'dinaiH'e  of  1787  as  was  iiieonsistent  with  that  instrument, 
hut  sueli  provisions  as  were  not  in  opposition  to  our  constitution 
were  held  to  he  binding  on  the  State. 

“M(d  jEan,  d.,  on  tlie  circuit,  expressed  substantially  tlie  same 
views,  in  two  cases  heard  before  liim- — Spooner  v.  McConnell,  1 Mc- 
Ijean,  IVM ; Palmer  v.  Commissioners,  3 id.,  22().  The  Supreme 
court  of  the  United  States,  liowever,  seem,s  to  have  adopted  the 
view  that  the  ordinance  of  1787  is  not  in  force  in  the  States  since 
formed  witliin  the  Territory  mentioned  and  admitted  into  the 
Union  on  an  ecpial  footing  with  tlie  original  States.  The  question 
was  raised  and  discussed  in  Permoli  v.  First  Municipality , 3 How., 
7)89.  The  Act  of  Congress  of  April,  1798,  extended  the  ordinance 
of  1787  to  the  then  Territory  of  Mississippi,  with  the  exception  of 
the  anti-slavery  clause,  and  declared  the  people  of  the  Territory 
should  he  entitled  to  and  enjoy  all  the  rights  and  privileges  and 
advantages  granted  to  the  people  of  the  territory  northwest  of 
the  Ohio  River,  and  by  the  Act  of  March  2,  1805,  it  was  enacted 
that  the  people  of  the  then  Territory  of  Orleans  should  ha,ve  all 
the  rights,  privileges  and  advantages  under  the  ordinance  of  1787 
then  enjoyed  hy  the  people  of  the  Mississippi  Territory. 

“Although  the  decision  in  Permoli  v.  First  Mumcipality  was 
confined  to  the  Territory  in  which  it  arose,  Taney,  C.  J.,  in  remark- 
ing upon  it  in  Strader  v.  Graham,  10  How.,  82,  said,  AVhen  it  is 
decided  that  this  ordinance  is  not  in  force  in  Louisiana,  it  follows 
it  cannot  he  in  force  in  Ohio.’  It  may  he  added,  as  a matter  of 
course,  if  the  ordinance  is  not  in  force  in  Ohio,  it  cannot  be  in 
force  in  Illinois.  An  elaborate  discussion  of  the  effect  of  the  ordi- 
nance of  1787  and  of  the  Acts  of  Congress  extending  it  to  other 
teriitory,  was  had  in  Pollard  v.  Hogan,  3 How.,  212,  and  Chief 
Justice  Taney,  in  Strader  v.  Graham,  refers  to  the  opinion  deliv- 
ered in  that  case  and  expresses  his  concurrence  in  the  reasoning 
and  principles  hy  which  the  judgment  was  maintained. 

“The  question  raised  is  one  of  grave  importance,  and  without 
expressing  any  definite  opinion  as  to  whether  the  clause  of  the 
fourth  section  of  the  ordinance  of  1787,  cited,  has  been  changed 
or  annulled  by  competent  authority,  or  whether  it  is  still  binding 
as  an  inhibition  on  the  taxing  power  of  the  State,  we  tliink  the 
present  judgment  max  be  maintained  on  other  grounds.”  (Pages 
31-35.) 


THE  NAVIGATION  CASES  UNDER  THE  ORDINANCE  OF  1787  IN  ILEINOIS. 

1818  People  v.  City  of  St.  Louis,  10  111.  (5  Gilm.),  351. 

That  was  a bill  to  enjoin  the  City  of  St.  Louis  and  its  agents 
from  filling  up  the  narrow  eastern  channel  of  the  Mississippi  be- 
tween Bloody  tsland  and  the  Illinois  shore.  The  court  below  dis- 


779 


luissod  tlio  bill  and  tlin  Suprnino  (‘onrt  i*ev(‘rs(‘(l  it  and  ()i-d(n-(‘d  a 
porpotnal  injniu'tion.  d1ie  facts  were  stated  by  the  coni't  tliiis: 

“The  prin('ij)a!  (*bann(*l  of  tlie  river,  with  about  five-(hglitlis  ot 
the  water,  passes  west  of  Bloody  Island;  and  this  channel  is  used 
for  all  ordinary  pur})oses  of  navigation,  passing  up  and  down  the 
river;  while  the  eastern  channel  can  only  be  navigated  with  a small 
class  of  steamboats,  and  wiith  flatboats,  keelboats  and  barges ; 
although  in  a very  high  stage  of  water  it  is  safe  for  the  very  largest 
class  of  boats ; and  in  a very  low  stage  it  is  hardly  navigable  at  all, 
but  is  used  for  mooring  boats.  Although  the  Mississippi  Kiver  is 
not  what  is  termed  by  the  common  law  a navigable  stream,  yet  it  is 
so,  in  fact,  and  has  been  declared  to  be  so,  and  recognized  as  such 
by  numerous  treaties  and  many  public  laws.  While  its  outlet  and 
western  border  belonged  to  ^Spain,  it  was  declared  in  the  fourth 
section  of  the  treaty  of  1795,  between  the  United  States  and  tliat 
power,  ‘that  the  navigation  of  the  said  (Mississippi)  river  in  its 
whole  breadth,  from  its  source  to  the  ocean,  shall  be  free  only  to 
his  subjects  and  the  citizens  of  the  United  States,  unless  he  shall 
extend  the  privilege  to  the  subjects  of  other  powers  by  special 
convention.’  8 U.  S.  Stat.  at  Large,  141.  And  by  the  fourth  arti- 
cle of  the  ordinance  of  1787,  it  is  provided,  ‘that  the  navigable 
water  leading  into  the  Mississippi  and  St.  Lawrence,  and  the  car- 
rying ])laces  between  the  same,  shall  be  common  highways,  and 
forever  free,  as  well  to  the  inhabitants  of  the  said  territory  as  to 
the  citizens  of  the  United  States,  and  those  of  any  other  State  that 
]nay  be  admitted  into  the  confederacy,  without  any  tax,  im})ort  or 
duly  therefor.  ’ 

“It  is  an  important  in({uiry  to  determine  what  kind  of  juristli(“- 
tion  the  several  'States,  through  and  between  which  this  river  and 
its  tributaries  run,  may  exercise  over  such  parts  of  them  as  ure 
within  their  respective  limits,  without  violating  the  rights  thus 
secured  to  the  citizens  generally.  This  is  certainly  a deli(‘ate  (pies- 
tion,  and  in  its  solution  it  is  necessary  to  examine,  as  well  the 
rights  and  benefits  secured  to  the  citizens  of  all  the  States,  as  the 
powers  and  jurisdiction  of  the  several  States  over  the  portions  of 
this  great  highway,  within  their  several  boundaries.  Jiideed,  the 
determination  of  the  one  settles  the  other;  for  the  sovei'eign  power 
of  these  States  over  this  highway  is  only  limited  or  dimini'shed  by 
the  guaTanty  of  rights  to  the  common  citizens  of  the  Union.  But 
for  that  guaranty,  the  sovereign  ])ower  of  the  States  over  the  por- 
tions of  the  river  within  their  limits,  would  be  the  same  as  it  would 
be  over  any  of  their  highways.  AVhat,  then,  is  this  common  right 
guaranteeci  to  all!  Mdiat  benefits  were  they  to  derive  from  it,  and 
what  were  the  privileges  which  they  were  to  enjoy!  The  object  to 
be  attained  was  the  promotion  of  commerce,  and  the  rights  secured 
are  purely  commercial.  The  States  can  do  nothing  which  will  suh- 
stantially  abridge  those  rights,  but  may  do  anything  which  will 
not  have  that  effect,  whicli  they  could  do  but  for  this  guaranty. 


780 


Without  this  g-uaranty,  the  States  might  treat  auy  portion  of -this 
river  vvitliin  their  limits  as  a highway  or  not,  and  if  made  a high- 
way their  control  and  jurisdiction  over  it  would  be  the  same  as  over 
any  other  of  fheir  liighways.  This  guaranty  of  rights  to  the  citi- 
zens of  other  States,  although  made  before  the  creation  of  any  of 
tlie  States  through,  or  between,  which  it  flows,  may  be  constmed 
precisely  as  if  it  were  a grant  made  subsequent  to,  or  at  the  time 
of^  their  formation.  The  ordinance  itself  does  not  declare  the 
Mississippi  River  to  be  a common  highway  and  forever  free  to  all 
the  citizens  of  the  Union,  but  the  navigable  waters  leading  into  it. 
This  common  right  of  the  free  navigation  of  that  river  was  consid- 
ered as  already  existing,  and  the  extent  and  nature  of  that  right 
may  be  understood  from  the  provisions  made  in  relation  to  the 
tributaries,  as  all  were  undoubtedly  intended  to  be  placed  on  the 
same  footing.  There  are  two  prominent  restrictions  upon  the 
States  to  be  formed;  one  was  that  these  rivers  'should  never  be 
closed  against  the  citizens  of  other  States,  and  the  other  that  no 
tax,’ impost  or  duty  should  be  exacted  of  them  for  the  navigation  of 
these  highways.,  Wdiere  no  material  or  substantial  obstructions 
are  created  by  the  States  within  whoise  limits  those  rivers  run,  the 
citizens  of  the  other  States  cannot  complain.  The  substance  of  the 
in  gilt  secured,  is,  that  of  free  transit.  Suppose  one  State  or  Na- 
tion guaranty  or  grant  to  the  citizens  or  subjects  of  another  the 
right  of  freely  traveling  over  its  public  roads,  would  it  be  denied 
that  such  State  or  Nation  might  narrow  or  change  the  location  of 
such  road,  provided  its  free  and  commodious  passage  was  not  in- 
terrupted thereby*?  It  is  the  substance  of  the  right  that  is  to  be 
observed,  and  when  that  is  enjoyed  no  ground  of  complaint  exists. 
The  several  States  may,  within  their  own  jurisdictions,  do  what- 
ever they  please  with  this  river,  so  as  they  do  not  infringe  upon 
these  rights,  nor  otherwise  violate  the  rights  of  others.  This 
]iower  is  necessary  to  the  States  for  the  proper  management  of 
their  own  domestic  concerns,  and  has  been  habitually  exercised  by 
all  ever  -since  their  first  formation.  They  may  change  the  current 
of  this  river,  or  even  stop  up  some  of  its  confessedly  navigable 
channels,  whenever  they  find  it  necessary  to  their  own  well  being, 
the  same  as  any  other  highway,  taking  care  that  they  leave  a free 
navigation  to  those  who  have  a right  to  navigate  it.  As  in  the  case 
before  us,  admitting  this  eastern  channel  to  be  unquestionably  nav- 
igable, and  hence  a part  of  the  highway,  this  State  has  a right  to 
fill  it  up  entirely  and  unite  the  island  with  the  main  land,  if  the 
main  channel  is  still  left  open  to  free  and  uninterrupted  naviga- 
tion. If,  in  doing  this,  private  property  would  be  damaged,  com- 
pensation would  have  to  be  first  made  for  that.  The  exercise  of 
such  a power,  at  this  or  some  other  point,  might  be  indispensable 
for  the  terminus  of  a railroad  or  canal  or  some  other  public  work. 
Without  this  power,  the  jurisdiction  of  the  States  over  this  portion 
of  their  territory  would  not  b>e  wmrtli  the  name,  (a)  It  re(]uires  no 
vivid  imagination  to  see  in  the  future  the  immense  improvements 


781. 


that  are  to  spring*  u})  all  along*  both  banks  ot*  this  river  from  its 
source  to  its  mouth,  which  will  be  of  immense  advantage  not  only  to 
the  States  in  Avhich  they  are  'situated,  and  the  local  interests  in 
their  neighborhood,  but  to  the  general  navigation  of  the  streams, 
and  all  made,  too,  by  the  exercise  of  this  power  by  tlie  States  ovei* 
this  great  public  highway.  To  deny  this,  is  to  deny  the  right  of 
improvement,  as  well  as  the  power  of  injury.  The  absolute  ne(;es- 
sity  of  this  power  may  be  illustrated  by  many  familiar  instances, 
such  as  the  improvement  of  the  Naples  flats  in  the  Illinois  liiver. 
There  the  river  is  broad,  and  nearly  as  navigable  in  one  part  as 
another,  and  who  would  deny  the  right  of  the  State  to  compress 
the  water  into  a narrow  compass,  and  thus  deepen  the  channel? 

^^If  this  Illinois  channel  is  not  a part  of  the  public  highway,  then 
the  public  have  no  right  to  na^dgate  it,  and  consequently  whoever 
goes  there  is  a trespasiser  upon  the  owners  of  the  soil.  * * * 

‘‘We  cannot  entertain  a doubt  that  the  eastern  channel  of  the 
Mississippi  Kiver  between  Bloody  Island  and  the  main  land,  is  in 
fact,  and  within  the  meaning  of  the  law,  navigable,  and  part  of  the 
common  highway.  We  have  sought  in  vain  for  satisfactory  author- 
ity, vesting  in  the  court  a discretion  to  continue  or  dissolve  the  in- 
junction, as  it  might  deem  most  conducive  to  the  public  good.  Had 
we  that  discretion  we  should  not  hesitate  to  affirm  this  decree;  for  if 
we  were  permitted  to  form  an  opinion  we  could  not  doubt,  judging* 
from  the  facts  as  agreed  upon  in  this  case,  that  the  best  interests 
of  the  public,  as  a whole,  would  be  thereby  subserved.  But  that 
opinion,  as  the  case  stands,  could  only  be  expressed  as  individuals, 
and  others  might  judge  differently.  The  discretion  involved  is 
vested  in  another  branch  of  the  government.  We  are  not  at  lib- 
erty to  look  at  these  general  results  in  determining  whether  these 
works  would  amount  to  a nuisance.  The  executive  or  attorney 
general  may  very  ])ro})erly  have  considered  it  an  imperative 
duty,  to  protect  the  rights  of  the  State  against  encroachment,  leav- 
ing it  to  the  Legislature,  where  the  question  properly  belongs,  to 
say  whether  permission  should  be  given  to  proceed  Avith  these 
works. 

******* 

“But  where,  as  in  this  case,  the  nuisance  could  never  be  abated, 
and  the  public  rights  could  never  afterwards  be  enjoyed,  the  court 
may  not  evade  its  manifest  duty  as  pointed  out  by  the  law,  but 
must  effectually  and  in  earnest  interpose  its  restraining  power. 
It  is  the  business  of  another  department  of  the  government  to  de- 
termine whether  the  welfare  of  the  State,  and  the  interests  of  the 
public,  can  permit  these  works  to  progress.  While  we  might  be  of 
opinion  that  it  would  eminently  promote  the  public  welfare  to  fill 
up  this  eastern  channel,  and  permanently  unite  Bloody  Island 
AAuth  the  main  land,  it  is  possible  that  the  Legislature  might  think 
that  it  would  be  better  for  the  interests  of  the  State  to  let  the 


walc'r  work  its  way,  and  a('(‘()jii})lisli  wliat  is  antiei})ated  in  the  re- 
j)()rt  of  one  of  the  engineers,  and  change  the  main  cliannel  of  the 
river  to  the  east  of  the  island.  If  sucli  a result  can  he  prevented 
])y  the  exercise  of  any  legitimate  power  by  the  owners  of  the  banks, 
now  being  washed  away,  as  by  i-iveting  them,  we  tliink  the  State 
conld  not  (‘omplain,  ])nt  propriety  and  self-interest,  as  well  as  pub- 
lic duty,  sliould  have  dictated  an  ai)i)lication  to  tlie  ])roper  autliori- 
ties,  before  any  attempt  was  made  to  fill  n[)  and  entirely  destroy  a 
navigable  channel  of  the  river  situated  entirely  within  the  State. 

It  cannot,  however,  be  denied  tliat  tlie  State,  as  such,  has  a right 
to  insist  that  one  of  the  navigable  channels  of  this  river,  lying  en- 
tirely within  its  own  Imrders,  and  which  is  a part  of  the  public 
highway,  shall  not  be  destroyed  without  her  consent.  The  Legis- 
lature is  the  proper  department  to  judge  what  the  interests  of  the 
State  require,  or  may  permit,  and  it  is  there,  and  not  to  the  courts, 
that  appeal  must  be  made,  for  the  sanction  of,  or  permission  to 
arrest  these  works. 

‘^The  decree  of  the  Circuit  court  must  be  reversed  with  costs, 
and  a decree  entering  here  making  the  injunction  perpetual.” 

[This  iis  a specific  case  directly  holding  that  the  provision  of  the 
ordinance  of  1787,  securing  the  free  navigation  of  the  river,  is  in 
force  in  Illinois,  and  it  is  the  basis  of  the  decision.  The  ordinance 
guaranteed  the  free  highway  through  the  little  channel  which  ‘dn 
a very  low  stage  is  hardly  navigable  at  all,”  just  as  effectually  as 
it  did  in  the  main  channel  of  the  river.  There  can  be  no  manner  of 
doubt  that  if  the  case  at  bar  had  been  before  that  court  which  de- 
cided that  case,  it  would  have  granted  a perpetual  injunction  here 
just  as  it  did  there.] 

1865  Illinois  River  Packet  Company  v.  Peoria  Bridge  Associa- 
tion^ 38  111.,  467. 

In  this  case  the  court  was  asked  to  treat  the  ordinance  as  for- 
bidding the  bridging  of  the  Illinois  River.  The  court  said : 

‘‘It  is  unnecessary  to  decide  the  question  whether  this  or- 
dinance is  in  force  or  not.” 

“The  meaning  of  this  expression,  ‘shall  be  common  high- 
wayis  and  forever  free,’  is  made  very  manifest  by  the  conclud- 
ing words,  ‘without  any  tax,  impost  or  duty  therefor.’ 

“This  river  is  a common  highway,  free  to  the  Indian  in  his 
bark  canoe,  and  to  eveiy  other  vessel  floating  upon  the  water, 
whether  propelled  by  animal  power,  by  the  wind,  or  by  the 
agency  of  steam.  It  is  a common  highway,  free  and  so  for- 
ever to  remain,  to  all  citizens  of  the  United  States,  no  matter 
where  residing,  not  one  of  whom,  in  the  free  use  of  it,  can  be 


783 


('oinpc'llcHl,  mul(‘r  any  protoxi,  to  pay  any  tax,  impost  or  duty 
wliatovoi*  tlunad'or,  nor  ai>ainst  its  use  shall  tlima;  ho  any  oh- 
striud  ion. 

“ddierx^  is  no  r(\stri(‘tion  on  tlie  ])()wer  of  tlie  State,  if  this 
ordinaiu'o  be  still  in  force,  to  nse  the  most  approved  aidifieial 
means  for  crossing  tliose  waters.  It  oidy  ])rohil)its  its  ob- 
struction, and  the  impoisition  of  any  tax  or  duty  on  its  naviga- 
tion. * * * /y-’  (iQ-yyi  made,  or  a duty  levied  on  ves- 

sels for  oi)ening  the  draw,  it  might  witli  triitli  be  said  the  nav- 
igation was  obstructed.  * * * So  that  the  navigation  is 
left  free,  in  tlie  sense  in  wliich  we  expound  this  provision  of 
the  ordinance,  nothing  less  than  a total  ohst ruction  hij  dams 
or  other  impediments  of  that  nature,  would  be  a violation  of  its 
provisions.  Navigation  on  it  would  not  then  be  free,  for  the 
very  current  itself  would  be  in  custody  and  mankind  be  ex- 
cluded thereby  from  its  profitable  use.” 

In  applying  the  ordinance,  the  court  said  (pp.  479-1-82)  : 

‘‘It  will  be  seen  the  ordinance  of  1787  includes  navigable 
waters  leading  into  the  St.  Lawrence  River,  and  they  are  de- 
clared forever  free.  The  Chicago  River  is  such  a water,  pour- 
ing, by  the  ocean-lakes,  its  comparatively  trifling  flood  into 
the  St.  Lawrence,  the  latter  wholly  within  a foreign  jurisdic- 
tion. 

‘‘On  the  borders  of  this  little  river,  within  the  memory  and 
active  life  of  men  yet  young,  now  performing  their  parts  on 
its  busy  stage,  a city  has  grown  u]),  numbering  near  two  hun- 
dred thousand  people,  who  are  separated,  by  the  iieculiarities 
of  the  river,  into  three  great  divisions,  with  an  ei^ual  number 
of  inhabitants,  or  nearly  so,  in  each,  the  river,  liy  its  main 
stem  and  branches,  rising  and  running  in  directly  opposite  di- 
rections, capable  of  sustaining  vessels  of  great  draft  of  water, 
affording  a harbor  for  them,  of  more  than  fifteen  miles  in  ex- 
tent, is  spanned  in  its  course  to  the  lake  by  several  bridges, 
over  which  vast  crowds  of  people  and  ]>roperty,  in  vehicles 
of  every  description,  horsemen,  footmen  and  carriages,  hourly 
pass.  Has  any  one  ever  isupposed  the  facilities  of  intercourse 
and  business  afforded  by  these  structures  should  be,  of  right, 
subordinated  to  even  the  immense  commerce  which  crowds  the 
channel  of  this  river  and  whitens,  in  the  season  of  navigation, 
its  bosom  with  tbeir  canvass?  Has  any  one  advanced  the  idea 
that  those  bridges,  furnished  with  capacious  draws,  for  the 
passage  of  vessels,  mateT'ially  ol)struc*t  its  navigation?  Or 
if  they  do,  have  not  all  yielded  to  the  necessity  of  their  erec- 
tion? How  could  the  business  and  intercourse  of  that  great 
and  growing  city  be  carried  on  without  these  facilities  ; and 
while  the  navigation  of  the  river  is  not  su})jected  to  any  tolls 
or  duties,  who  has  a right  to  complain  of  these  structures? 
Has  it  ever  been  supposed  that  river  is  not  a highway,  as 


784 


(‘oinmioii  and  as  frep  for  navigation  as  it  was  wlien  animated 
only  by  tlie  Indian  in  bis  eanoe!  it  is  a common  liigliway,  as 
every  day  shows,  and  free,  because  no  duty,  tax,  impost  or 
(Iiarge  of  any  description  is  imposed  upon  tlie  use  of  its  water 
for  i)ur|)oses  of  navigation.  In  the  same  sense  is  the  Illinois 
Kiver  a common  highway  and  its  navigation  free,  and  will  re- 
main so,  when  spanned  by  a hundred  bridges,  provided  a suf- 
ficient channel  is  left,  and  no  tax  or  duty  levied  on  the  use  of 
its  water.  A mere  delay  in  passing  these  bridges,  which  pru- 
dence would  advise  at  unpropitious  moments,  when  winds  and 
currents  are  not  favorable,  can  not,  in  our  judgment,  affix  to 
them  the  quality  of  a material  obstruction,  or  of  any  other 
description  of  obstruction,  for  the  erection  of  which  the  own- 
ers should  be  liable  in  damages.  It  is  a matter  of  necessity  that 
the  franchise  of  navigation  should  be  constrained  to  meet  the 
exigency  and  yield  some  of  its  asserted  rights  for  the  sake  of 
works  of  such  great  public  utility.  As  the  bridge  could  not  be 
built  without  the  piers,  the  construction,  being  on  an  approved 
plan,  and  placed  where  they  should  be  placed,  relieve  the 
defendants  from  any  responsibility,  if  the  piers  were  the 
cause  of  the  injury,  if  no  negligence  be  shown  by  them. 

‘‘But  it  is  not  only  the  navigable  waters  which  ishall  be 
common  highways  and  forever  free,  but  also  the  ‘carrying 
places’  between  the  same. 

“To  imderstand  fully  this  provision,  we  must  consider  the 
condition  of  the  country  through  which  those  streams  flowed, 
and  the  mode  by  which  the  trifling  commerce  of  that  region 
was  carried  on,  when  the  ordinance  of  1787  was  adopted.  His- 
tory tells  us  it  was  then  a barbarous  region,  peopled  by  sav- 
ages, whose  frail  barks  were  the  only  vessels  which  floated  on 
these  waters,  and  whose  light  paddles  were  then  their  only 
propelling  power.  These  slight  vessels,  loaded  with  the  prod- 
ucts of  the  chase  or  of  isuccessful  trapping,  in  their  route  to 
Montreal  or  Quebec,  then  the  great  markets  for  furs  and 
peltries,  on  reaching  the  highest  point  accessible  to  them  by 
' water,  would  be  unloaded,  and  the  boats  and  cargo  carried  on 
the  backs  of  the  employes  across,  by  land,  to  another  stream, 
flowing  in  the  required  direction.  These  places  were  called 
‘portages,’  or  carrying  places.  Who  shall  say  that  these  noted 
carrying  places  shall  not,  at  some  future  day,  be  occupied  by 
a railroad,  or  several  of  them,  and  by  canals,  should  the  wants 
of  the  extended  and  growing  commerce  of  the  fruitful  regions 
where  they  are  demand  them!  Shall  this  provision  of  the  or- 
dinance be  an  insuperable  bar  to  such  improvements,  and  thus 
fetter  forever  the  commercial  energies  of  that  region!  All 
that  can  be  claimed  is,  that  as  carrying  places  they  shall  re- 
main free  as  a common  highway  to  all  whose  interests  may  re- 
quire their  use  as  such — ^interests  so  trifling  and  inconsider- 


ahlo,  so  dwarfed  by  the  growth  and  ])rogress  of  tin;  eonatry, 
as  not  to  stand  in  the  way  of  the  eanal  )[)oat,  the  steamboat,  and 
the  railroad  (^ar.  The  same  eonsiderations  a])ply  to  the  rivers 
themselves,  and  must  be  made  practieal,  by  the  rieeessiti(‘s  of 
our  existence  as  a great  conmiercial  people.” 

in  C'allaghaii  & Company’s  annotated  edition  of  tlie  Illinois  Re- 
})orts,  the  late  Judge  Van  Buren  Denslow  appends  to  this  Peoria 
Bridge  ease,  a learned  note,  38  111.,  pp.  482  et  seq.,  in  whieli  lie 
sums  iq)  the  decisions  on  the  ordinance  as  follows : 

‘^In  TF.  (&  J.  Hogg  v.  The  Zanesville  M.  <£  C.  Compang,  5 
Ohio,  410  (1832),  usually  considered  the  leading  case  on  the 
subject  in  the  West,  the  provisions  of  the  ordinance  of  1787 
were  first  invoked  for  this  purpose.  The  defendants  had  been 
authorized  by  the  Legislature  of  Ohio  to  erect  a dam  across 
the  Muskingum  River,  putting  therein  a lock  for  the  passage 
of  boats.  The  lock  became  choked  during  high  water,  and 
plaintiff  lost  his  boat  in  trying  to  pass  over  the  dam.  A ver- 
dict for  ])laintiff  was  reserved  for  the  opinion  of  the  full 
court,  wlio  gave  judgment  on  it,  holding  that  the  acts  must  be 
so  construed  as  not  to  allow  any  interference  with  the  naviga- 
bility of  the  river,  and  that  when  the  lock  got  out  of  order  so 
that  boats  could  not  ])ass  conveniently,  the  dam  became  n 
nuisance.  Under  any  other  construction  they  say  the  nets 
would  have  been  inconsistent  with  Art.  4 of  the  ordinance  of 
1787,  which  was  as  binding  on  the  State  of  Ohio  as  its  own 
constitution.  See  also  Cox  v.  State,  3 Blackford,  193  (1838). 
Fox  had  been  indicted  for  obstructing  White  River  witli  a 
mill-dam,  under  authority  from  the  Legislature;  and  the  Su- 
preme court  of  Indiana,  while  leversing  the  conviction  on  other 
grounds,  held  that  the  statute  authorizing  his  dam  was  uncon- 
stitutional and  void,  because  in  conflict  with  that  ordinance.” 

‘‘The  position  thus  taken  was  elaborately  discussed  and 
sustained  by  the  U.  S.  (fircuit  court  for  Ohio  in  the  case  of 
Spooner  v.  McConnell  et  al.,  1 McLean,  337-383  (1838),  in 
which  very  long  and  able  opinions  were  delivered  both  by  Mr. 
Justice  McLean  and  by  the  District  Judge,  II.  II.  Leavitt.  It 
was  an  application  for  an  injunction  to  ])revent  the  State 
Canal  Conmiissioners  from  erecting  a dam  across  the  Maumee 
River.  It  was  refused  on  the  ground  that  the  plaintiff  had  not 
sufficient  interest  to  sustain  his  interference,  but  with  an  inti- 
mation that  had  the  petition  been  filed  by  a person  actually 
engaged  in  the  navigation  of  that  river,  the  case  would  have 
been  different.  The  opinion  of  McLean,  J.,  seems  to  ns  one 
of  the  finest  ever  delivered  by  that  truly  great  judge.  He 
shows  that  the  provisions  of  the  ordinance  of  1787  res{)ecting 
navigable  waters  in  the  Territory  were  still  in  full  force  and 
effect,  and  that  the  Legislature  could  not  (‘ontravene  them  ;s 


and  in  an  (‘xtendcHl  distaission  of  ‘State  Sovereignty’  lie  sliows 
that  the  sovei-eignty  of  the  State  of  Ohio  was  not  ineonsistent 
with  this  restraint  on  the  powers  of  the  Ijegislatiire.  At  tlie 
same  time  he  intimates  that  this  restriction  would  not  extend  to 
ordinary  works  of  improvement.  But  this  ])oint  was  more 
(‘learly  i-ul(‘d  in  the  suliseipient  (ause  of  Palmer  v.  Cuyahoga  Co., 
d Mcljean,  22G  (1842),  in  wliich  an  application  for  an  injunc- 
tion to  pi-event  the  construction  of  a draw-liridge  over  tlie 
Chiyahoga  River  was  refused.  The  opinion  is  a brief  one. 
resting  entirely  on  the  preceding  one;  but  the  case  decides 
(‘learly  that  a draw-bridge  is  not  sucli  an  olistruction  as  the  or- 
dinance forbids,  and  that  no  doubt  is  entertained  of  the  power 
of  the  State  to  make  one. 

“The  next  case  of  importance  in  chronological  order  vras 
]Villiams  v.  Beardsley  et  al.,  2 Carter,  7 (Ind.),  59  (1851),  a 
case  remarkably  similar  in  all  its  circumstances  to  the  one 
which  has  suggested  the  ])resent  note.  The  plaintiff,  wdiose  boat 
was  injured  by  collision  with  defendant’s  bridge,  asked  the 
court  below  to  charge  (substantially)  that  if  the  effect  of  the 
lu'idge  was  to  make  necessary  any  change  whatever  in  build- 
ing, manning  or  e(piii)])ing  tlie  boats  used  in  navigating  the 
river,  or  if  it  in  any  degree  made  navigation  more  dangerous, 
it  was  a nuisance,  and  (die  plaintiffs  could  recover  unless  wil- 
fully^ negligent.  The  court  modified  these  instructions  by  in- 
serting ffinless  the  general  and  public  advantage  arising  from 
the  bridge  exceed  any  slight  inconvenience  arising  therefrom,’ 
and  other  words  to  the  same  effect.  The  Supreme  court  held 
that  those  instructions  ^Ye^e  at  least  as  favorable  to  the  plain- 
tiffs, who  apiiealed,  as  they  had  any  right  to  demand;  that  a 
draw-l)ridge  was  not  necessaiily  a nuisance  (as  a dam  was, 
Cox  V.  State,  3 Blackf.,  193,  supra)  or  forbidden  by  the  ordi- 
nance of  1787;  and  followed  the  preceding  cases  in  recognizing 
the  paramount  authority  of  that  ordinance. 

“Meanwhile  the  ground  had  been  cut  away  from  under  all 
these  cases,  by  a series  of  decisions  in  the  Supreme  court  of 
the  United  States  that  no  part  of  the  ordinance  of  1787  re- 
mained in  force  since  the  adoption  of  the  Constitution  of  the 
U.  S.  and  of  the  States  fonnecl  from  that  Territory.  See  Pol- 
lard’s Lessee  v.  Hagen,  3 Howard,  212  (1845)  ; Permoli  v. 
First  Muiiieipaliiy,  eie.,  id.,  589  (1845),  and  Strader  v.  Gra- 
ham, 10  Howard,  82  (1850).  McLean  and  Catron,  JJ.,  dis- 
sented in  the  last  named  case,  and  a very  ])ow^erful  argument 
bearing  directly  against  all  the  reasons  of  the  majority  for 
their  holding  will  also  be  found  in  the  case  in  1 INtcLean 
already  cited. 

“The  I".  S.  Su})reme  court  had  also  long  before  decided  in 
the  great  case  of  Gibbons  v.  Ogden,  9 AVheaton,  1 (1821),  that 
a State  had  no  right  to  prevent  any  citizens  of  the  Ignited 


7H7 


Stales  fi-oin  navi^’atia^’  tlie  iiavigahle  watca's  williin  its 
bouiuiarios,  founding’  its  dcK'isiorii  oil  tluM'onstitutioiial  I'iglit  of 
(\)iii>ross  t.o  1‘egnlate  coiniiuMTe  and  on  the  eni-ollnunit  and 
lieensing  a(dis.  But  it  liUid  also  in  Wilson  v.  The  Block  Bird 
Brcidi  il/(/r,s7^  Co.,  2 Peters,  245  (1829),  decided  that  an  M(‘t  of 
the  State  of  Delaware,  ])erinitting  a small  navigable  creek 
within  that  State  to  he  closed  by  a dam,  was  valid  on  the  ground 
that  Oongress  had  not  legislated  on  that  subject.  In  the 
AVheeling  Bridge  case,  next  to  be  mentioned.  Judge  McLean 
attempts  to  distinguiisli  that  case  from  this  (see  13  Howard,  p. 
5()()),  but  it  seems  to  us  impossible  not  to  concur  in  the  view 
of  (;h.  d.  Taney  in  his  dissenting  opinion  {Id.,  p.  585)  that  the 
case  in  2 Peters  was  directly  in  point;  in  which  case,  however, 
it  must  also  be  considered  as  overruled  by  the  later  and  more 
famous  case  next  to  be  mentioned. 

“The  Bridge  over  the  Ohio  at  Wheeling,  which  the  plaim 
tiffs  in  the  case  of  The  State  of  Pennsylvania  v.  The  Whe.elmy 
and  Belmont  Bridge  Co.  et  al.,  13  Howard,  518  (1851),  souglit 
to  abate  as  a nuisance,  had  no  draw,  but  was  elevated  far 
enough  above  the  river  to  allow  all  but  a few  of  the  very  larg- 
est boats  plying  on  the  Ohio  to  pass  under  it  freely.  Still  the 
court  held  it  to  be  a nuisance,  and  required  it  to  be  raised  still 
higher,  or  else  to  be  altered  so  as  to  admit  of  the  passage  of 
boats  by  a draw.  This  decision  wms  based  entirely  on  the 
exclusive  power  of  Congress  to  control  commerce  and  naviga- 
tion and  their  acts  regulating  navigation  on  the  Ohio,  ft  also 
repudiated  the  doctrine  winch  had  crept  into  some  of  the  later 
cases,  that  the  lawfulnesis  of  such  a l)ridge  was  to  be  ascer- 
tained by  a comparison  between  the  injuries  and  benefits  it 
])roduces,  citing  the  cases  of  The  King  v.  Sir  John  Morris,  1 
Barn  and  Adoh,  441,  in  which  it  was  held  that  the  impiiry  can 
not  be  balanced  against  the  benefits  secured,  and  The  Kmg  v. 
George  Henry  Ward,  4 Ad.  & Eh,  384,  holding  that  wdiere  the 
jury  found  that  an  emhankment  complained  of  was  a nuisance, 
but  that  the  inconvenience  was  (‘ounterbalanced  by  the  ])ublic 
benefit  arising  from  the  alteration,  it  amounted  to  a verdi(*t  of 
guilty.” 

“This  case  wuis  followed  by  Works  v.  The  Junction  Bail  road 
Co.,  5 McLean,  -1-25  (1853),  by  (ddnmb'iis  Insurance  Co.  v.  Cur- 
tenims  et  al.,  (>  M('Lean,  209  (1854),  and  by  Same  v.  The  Peoria 
Bridge  Co.,  Id.,  70  (1853),  the  Inst  fwo  l}eing  the  same  case 
under  different  yhiases.  The  second  case  came  u])  on  a de- 
murrer to  the  i)lea,  and  Judge  Drummond,  in  a very  able  opin- 
ion held  that  a ])lea  which  avei*red  exact  compliance  witli  the. 
law  authorizing  the  building  of  the  l)ridge  was  not  suflicient, 
but  that  defendants  must  also  show  that  the  bridge  was- not  an 
essential  obstruction — in  other  words,  that  the  State  Legisla- 
ture could  not  conclusively  determine  what  was  oi*  was  not  an 
essential  obstruction  or  a sufficient  i)assage-way.  ” 


“In  referenco  to  tlie  validity  of  the  ordinance,  Judge  I), 
remarks  as  follows:  ‘it  is  said  that  tliis  provision  of  the  ordi- 
nance is  not  in  force.  This  iseems  to  })e  the  doctrine  now  es- 
tahlislied  by  the  Su))reine  (k)urt  of  the  United  States,  contrary 
to  what  has  been  the  genei'al  understanding  for  many  years  in 
the  States  carved  out  of  tliat  Territory  (citing  cases  J and  iO 
Howard,  supra).  It  was  never  don])ted  but  tliat  any  pro- 
visions of  the  ordinance  whicli  were  contraiy  to  the  constitu- 
tion of  the  U.  S.  and  the  laws'  jiassed  in  pursuance  thereof, 
or  to  the  constitutions  of  the  States  formed  out  of  that  Terri- 
tory, were  abrogated,  because  the  common  consent  mentioned 
in  the  ordinance  was  then  presumed.  But  it  seems  certain 
that  (Congress  did  not  exactly  regard  the  ordinance  as  at  an 
end,  hy  tlie  adoption  of  the  Constitution  of  the  United  States, 
as  is  ])lain  from  the  very  first  law  on  the  subject  adapting  it 
to  the  constitution,  1 Stat.  at  Large,  50.  And  in  allowing  the 
various  States  which  were  formed  out  of  that  Territory  to 
adopt  State  governments,  provision  was  made  that  they  should 
not  do  anything  repugnant  to  the  ordinance,  with  certain  speci- 
fied exceptions.  As  to  Ohio,  Act  of  April  30th,  1802,  Sec.  5. 
2 Stat.  at  Large,  i73.  As  to  Indiana,  Act  of  April  19,  1816, 
Sec.  -f,  3 Stat.  at  Large,  428.  And  the  same  is  true  of  the 
States  'Since  admitted,  Michigan  and  Wisconsin.  And  Congress 
extended  the  provisions  of  this  ordinance,  except  the  intro- 
ductory clause,  over  some  of  the  South  M^estern  States.’  6 
McLean,  pp.  212-13.  But  the  learned  judge  also  goes  on  to 
show  that  there  has  been  legislation  by  Congress  since  the 
adoption  of  the  Constitution  securing  to  the  people  of  the 
North  Western  States  all  the  rights  of  navigation  which  the 
ordinance  did  or  could  provide  for.” 

“In  1865  the  long  litigation  over  the  Eock  Island  Bridge 
first  appears  in  The  United  States  v.  The  R.  R.  Bridge  Co., 
6 McLean,  517,  in  which  an  injunction  against  the  building 
of  that  bridge  was  refused,  on  the  ground  that  no  irreparable 
injury  was  shown.  But  to  follow  out  the  line  of  decisions  of 
which  this  is  the  precursor  would  lead  us  to  questions  adhuc 
sub  judice,  with  which  of  course  propriety  forbids  our  med- 
dling, and  this  note  has  already  been  extended  beyond  its  ex- 
tended limits.  It  will  be  seen  that  the  fulcrum  of  judicial  in- 
terference with  the  chartered  interests  of  bridge-owners  still 
rests  on  an  uncertain  basis.  The  question  is  an  interesting 
one  not  only  in  this  application,  but  with  respect  to  other 
parts  of  the  ordinance  of  1787,  and  perhaps  it  may  not  be  pre- 
sumptions to  express  a belief  that  the  Supreme  Court  of  the 
United  States  may  hereafter  change  its  attitude  toward  that 
ordinance,  now  that  the  secret  influences  which  too  long  and' 
too  powerfully  swayed  its  judgments  have  lost  their  power.” 


lS(i9  Cltij  of  (Uiivaffo  v.  Mcilinn,  51  111.,  2()(). 

Ill  this  case  tlie  City  of  Chicago  brouglit  action  against  a vessel 
owner  for  violation  of  the  city  ordinance  regulating  the  time  and 
manner  of  vessels  in  passing  the  swing  bridges  over  the  Chicago 
River.  The  judgment  below  was  for  the  defendant,  which  was 
reversed  above.  In  this  case  the  court  quoted  the  Peoria  Bridge 
case,  38  111.,  467,  with  approval,  and  said: 

‘‘And  remarking  upon  tlie  provision  of  the  ordinance  of 
1787,  that  the  navigable  waters  leading  into  the  Mississippi 
and  St.  Lawrence,  and  the  carrying  places  between  the  same, 
shall  be  common  highways,  and  forever  free  as  well  to  the  in- 
habitants of  the  Territory  as  to  the  citizens  of  the  United 
States,  and  without  any  tax,  impost  or  duty  therefor,  it  was 
said  there  was  no  restriction  on  the  power  of  the  State,  if  the 
ordinance  wms  yet  in  force,  to  use  the  most  improved  artificial 
means  of  crossing  those  waters.  The  ordinance  prohibits  only 
its  obstruction  and  the  imposition  of  a tax  or  duty  on  its  navi- 
gation. Nothing  less  than  a total  ohstruction  by  dams,  or 
other  inlpediments  of  that  nature,  would  be  a violation  of  its 
provisions.  Navigation  upon  them  ivoidd  not  then  be  free,  for 
the  very  current  itself  ivould  he  in  custody,  and  mankind  be 
thereby  excluded  from  its  profitable  use.  That  it  does  not 
mean  that  the  river  and  its  navigation  shall  be  a common 
highway,  free  from  all  and  every  condition,  but  only  that  it 
shall  be  free  from  obstruction  and  free  from  any  burden 
imposed  in  the  shape  of  a duty  or  tax.” 

KECENT  ILLINOIS  CASES  UPON  THE  ORDINANCE  OF  1787. 

1895  The  People  v.  Thompson,  155  111.,  451. 

In  this  case  this  court  decided  that  the  Act  of  June  15,  1893, 
making  an  apportionment  of  the  State  into  Senatorial  districts, 
was  constitutional  and  had  not  disregarded  the  rexpiirements  of 
the  constitution  then  in  force,  on  the  subject  of  legislative  ap|ior- 
tionment.  Incidentally,  tlu  ])i()vision  of  the  Ordinance  of  1787 
relative  to  proportionate  representation  was  called  to  their  atten- 
tion. The  court  said  (pp.  471-2)  : 

“Counsel  for  appellants,  evidently  realizing  the  extreme 
difficulty  of  determining,  by  legal  interpretation  or  construc- 
tion, the  precise  bounds  fixed  to  the  discretionary  power  of 
the  General  Assembly  in  applying  the  constitutional  require- 
ments of  compactness  of  territory,  and  equality,  as  nearly  as 
practicable,  in  population,  when  forming  districts,  while  at 
tlie  same  time  complying  with  other  more  definite  limitations. 


have  and  (jiioted  from  tlie  oi'dinaiu'e  of  1787,  passed  l>y 

tlie  Congress  of  t'ne  Confeacration  for  tlie  government  of  the 
Northwest  Territory.  Tliis  ordinaru'e  })rovided,  among  other 
things,  that  Cso  soon  as  there  shall  he  o,000  free  male  inhab- 
itants of  full  age  in  the  district,  u})OJi  giving  proof  thereof  to 
the  (ioveinor  tliey  shall  receive  authority,  witli  the  time  and 
place,  to  elex't  representatives  from  tlieir  counties  or  town- 
shi])s  to  i'e])reisent  them  in  the  (Jeneral  Assembly,’  and  that 
'the  inh(il)it(mf,s  of  said  territori/  * * * shall  always  he 

eatifled  to  the  benefits  of  * * * f(  proportionate  repre- 

sentation of  the  people  in  the  legislature.’ 

“Counsel  do  not  seem  to  contend  that  this  ordinance,  even 
if  to  be  treated  as  in  force  in  this  State,  has  any  extra-consti- 
tutional force,  hut  refer  to  it  as  evidence  of  the  inheritance  by 
the  |)eo])le  of  a State  carved  from  that  territory,  of  the  riglit 
to  equal  representation  in  the  Legislature  as  a birthright.  We 
do  not  think  that  the  existence  of  this  right,  so  far  as  it  can  be 
])ractically  carried  into  effect  by  the  instminentalities  of  hu- 
man government,  imperfect  at  best,  will  be  denied  by  any  one. 
Jt  is  a right  recognized  and  protected  by  the  constitution  to 
the  extent  thought  necessary  and  practicable  at  the  time  of  the 
adoption  of  that  instrument.  But  if  it  be  contended  that  the 
ordinance  of  1787  has,  on  this  subject,  any  force  in  this  State, 
except  so  far  as  its  principles  are  embodied  in  the  constitu- 
tion, with  that  contention  we  cannot  agree,  but  must  hold  the 
constitution — not  the  ordinance  of  1787 — to  be  the  supreme 
law  by  which  the  statute  in  ciuestion  must  be  tested,  it  not  in 
any  wise  interfering  with  any  power  delegated  to  the  Federal 
government  nor  denied  by  the  Federal  coirstitution  to  the 
State.  ’ ’ 

Incidentally  the  court  refer  to  a number  of  federal  cases  in 
whicli  the  Ordinance  of  1787  has  been  referred  to  and  in  various 
respects  declared  inoperative,  viz. : 

123  U.  S.,  288;  3 How.,  588;  3 How.,  212;  117  U.  S.,  151  ; 

119  U.  S.,  544;  10  How.,  82. 

And  the  opinion  of  Piis^xey,  J.,  in  81  Wis.,  440. 

Tlie  only  Illinois  case  cited  on  the  Ordinance  in  155  111.,  is  Phoebe 
V.  Jay,  1 B’s  B.,  268,  the  scope  of  which  we  have  already  seen. 

The  federal  cases  cited  we  have  elsewhere  reviewed. 

1897  Dixon  v.  The  People,  168  111.,  179. 

In  that  case  the  court  held  that  a jiliysician  regularly  subiioe- 
naed  and  interrogated  as  an  expert  witness'  only  cannot  refuse  to 


tostily  ii[)()n  ilio  groiiiid  that  no  (‘oiiipeiisatioii  groator  than  that 
allowed  to  ordinary  witnes«es  has  })een  paid  or  pron)is(‘d  to  him. 

In  that  case  the  court  say: 

‘H\)nnsel  for  api)ellant  say,  howevei*,  that  arti('le  2 of  the 
Ordinance  of  1787  ])rovided  as  follows:  ‘No  man  shall  })e  de- 
prived of  liis  life,  liberty  or  property,  but  by  the  judgment  of 
Ills  peers,  or  the  law  of  the  land:  and  should  the  public  exigen- 
cies make  it  necessary  for  the  common  ])reservation,  to  take 
any  man’s  property,  or  to  demand  hks  particular  services,  full 
compensation  shall  be  made  for  the  same.’  It  is  to  be  here 
noted,  that,  by  the  use  of  the  expression,  ‘to  take  any  man’s 
})roperty  or  to  demand  his  particular  services,’  the  article 
seems  to  draw  a distinction  between  property  and  particular 
services.  Therefore,  if  the  knowledge  of  the  expert  witness 
is  included  within  the  meaning  of  particular  services,  it  cannot 
be  regarded  as  property.  However  this  may  be,  the  Ordinance 
of  1787  is  not  in  force  in  the  State  of  Illinois.  In  the  recent 
case  of  People  v.  Thompson,  155  111.,  451,  this  coiiid  lield  tliat 
the  Ordinance  of  1787,  passed  by  the  Congress  of  the  Confed- 
eration for  the  government  of  the  Northwest  Territory,  has  no 
force  in  Illinois,  except  so  far  as  its  principles  are  embodied  in 
the  State  constitution.  In  that  case  the  whole  subject  is  elab- 
orately discussed,  and  many  authorities  are  referred  to  sus- 
taining the  position  there  taken.” 

The  Dixon  case  finally  says:  “The  Ordinance  of  1787  is  not  in 
force  in  the  State  of  Illinois.” 

No  court  of  fllinois  had  ever  said  it  before.  Mr.  rrusti('e  Ma- 
gruder,  in  the  opinion  in  that  case,  inadvertently  fell  into  an  ina(‘- 
curate  expression. 

The  case  in  the  155th  on  proportional  repi  esentation  did  not  say 
that  the  ordinance  was  not  in  force,  but  it  did  (piote  some  federal 
cases  which  stated  that  the  ordinance  had  become  ino})erative  and 
inferentially  seemed  to  a])prove  them  as  ai)])lied  to  ‘'this  suhjeci” 
of  proportional  representation. 


THE  DUHATIOX  OF  THE  OliDIXANCE. 


The  provisions  of  the  OiTliiiance  with  res[)ec‘t  to  tlieir  duration 
as  law  divide  theinselves  hy  tlieir  own  terms  into  two  classes,  viz.: 

1.  Provisions  avowedly  temporary. 

2.  Permanent  provisions. 


I. 

Provisions  avowedly  temporary. 

Among  these  provisions,  for  example,  are  the  following:  ^‘That 
the  said  territory,  for  the  purpose  of  temporary  government,  be 
one  district.”  (Sec.  1.) 

‘‘This  law  relative  to  descents  and  dower  shall  remain  in 
full  force  until  altered  by  the  Legislature  of  the  district.” 
(Sec.  2.) 

“There  shall  be  appointed  * * * ^ Governor,  whose 

commission  shall  continue  in  force  for  the  term  of  three  years, 
unless  sooner  revoked  by  Congress.”  (Sec.  3.) 

“There  shall  be  appointed  * * * a Secretary,  whose 

commission  shall  continue  in  force  for  four  years,  unless 
sooner  revoked.”  (Sec.  4.) 

“A  Governor  and  Judges  * * * shall  adopt  * * * 

such  laws  of  the  original  States  * * * as  may  be  neces- 
sary, * * * which  laws  shall  be  in  force  in  the  district 
until  the  organization  of  the  General  Assembly  therein,  unless 
disapproved  of  by  Congress.”  (Sec.  5.) 

“9.  So  soon  as  there  shall  be  five  thousand  free  male  in- 
habitants, * * * they  shall  receive  authority,  with  the 

time  and  place,  to  elect  Kepresentatives,  * * * provided 

that  for  every  five  hundred  free  male  inhabitants  there  shall 
be  one  Kepresentative,  and  so  on,  progressively  * * * un- 

til the  number  of  Representatives  shall  amount  to  twenty-five, 
after  which  the  number  and  proportion  of  Representatives 
shall  he  regulated  hy  the  Legislature.’’ 

IT. 

PERMANENT  PROVISIONS. 

Under  this  head  fall  the  provisions  of  the  articles  of  compact, 
so  far  as  they  have  not  been  altered  by  common  consent.  They 
are  introduced  as  follows  : 

“It  is  hereby  ordained  and  declared  by  the  authority  afore- 
said that  the  following  articles  shall  be  considered  as  articles 


79:\ 

of  ('(HupiK'i  ):('l\v(‘('n  lli(‘  original  Stnt(‘s  aial  Uk;  i)('C)j)l(^  and 
Slates  in  the  said  d\nTit()iy,  and  r()r(‘vei-  remain  nnalt(‘rat)le, 
unless  by  ('onnnoii  eonsent,  to-wil: 

“Article  1.  Freodoiii  of  relif^ious  worship. 

‘‘Article  2.  Bill  of  rights. 

“Articled.  Eeligion,  morality  and  knowledge  heing  neces- 
sary to  good  government  and  the  happiness  of  mankind,  sclioels 

and  the  means  of  education  shall  forever  he  encouraged. 
* * * 

“Article  4,  * * * TPe  navigation  clause  heretofore 

quoted. 

“Article  5.  Subdivision  into  five  states. 

“Article  6.  There  vshall  be  neither  slavery  nor  involuntary 
servitude  in  the  said  Territory  otherwise  than  in  the  punish- 
ment of  crimes  whereof  the  party  shall  have  been  duly  con- 
victed; provided  always  that  fugitives  may  be  lawfully  re- 
claimed. ’ ’ 

In  the  Thompson  case,  155  Ilk,  the  court  had  before  it  the  tem- 
X^orary  x:)rovision  for  x:)roportional  rex')resentation  which  ax)plied 
until  the  Legislature  reached  the  number  of  twenty-five,  after 
which  the  number  and  proportion  of  the  Representatives  shall  be 
regulated  by  the  Legislature^^ 

The  court  most  correctly  held  that  this  provision  did  not  control 
and  invalidate  the  Legislative  apportionment  of  1893,  wdien  the 
Legislature  numbered  150  in  the  lower  house  and  51  in  the  upper 
house.  The  court  was  not  called  u])on  to  go  beyond  tliis  and  did 
not  go  beyond  it,  although  it  quoted  arguendo  some  federal  deci- 
sions which  said  that  the  ordinance  was  inoperative. 

In  the  case  of  Dixon,  the  ])hysi(*ian,  in  108  Ilk,  the  court  had 
to  deal  Avith  the  question  whether  the  new  hill  of  rights  in  the 
constitution  had  taken  the  i)lace  of  the  old  bill  of  rights.  The  old 
bill  of  rights  had  been  “abrogated  by  (*onmion  consent,”  the  new 
bill  of  rights  taking  its  place.  They  are  almost  identical  in  word- 
ing, and  are  identical  in  meaning,  and  the  i^rinciple  truly  apjilied 
that  the  constitution  on  this  point  was  a re-enactment  of  the  ordi- 
nance. But  Mr.  Justice  Magruder  inadvertently  used  the  explicit 
negative  statement  “that  the  Ordinance  of  1787  is  not  in  force  in 
the  State  of  Illinois.” 

His  only  Illinois  authority,  the  Jay  case  (Beecher’s  Breese,  p. 
272)  says:- — “The  Ordinance,  hoAvever,  is,  no  doubt,  still  binding 
upon  the  people  of  this  State,  unless  it  has  been  abrogated  by  com- 


71)4 


moil  (‘oiisonl.  ‘By  common  consent,’  I understand  tlie  United 
States  and  the  people  of  this  State,  and  tvhcnaver  they  shall  ayree 
that  the  whole  or  any  pari  of  the  Ordinance  of  1787  sliall  be  re- 
pealed, it  H'ill,  so  far  as  affects  this  State,  become  a dead  letter.” 
And  tlie  court  lield  that  the  approval  by  (vongress  of  the  Constitu- 
tion of  1818  embodying  Article  b.  Section  8 thereof,  concerning 
negroes,  mulattoes  and  ])ersons  bound  to  service,  constituted  an 
abrogation  tiy  common  consent  of  the  slavery  clause  for  Illinois. 
That  is  the  only  clause  wliicli  liad  lieen  abrogated  by  common  con- 
sent. 

It  vras  a sorry  day  for  the  history  of  Illinois  when  that  common 
consent  as  to  that  particular  provision  wms  reached;  but  never  un- 
til 1897  has  it  heeii  said  liy  an  Illinois  court  tliat  tlie  rest  of  the 
Ordinance  vnis  not  in  force. 

As  we  have  seen  in  The  People  v.  St.  Louis,  5 Gihn.,  951,  the 
State  of  Illinois  in  its  sovereign  capacity,  asserted,  relied  on  and 
enforced  the  Ordinance  of  1787  as  guaranteed  to  the  State  a free 
right  of  navigation  in  even  the  shallowest  arm  of  the  Mississippi, 
and  it  enjoined  Ihe  great  City  of  St.  Louis  from  attempting  to  in- 
terfere with  such  narrow  channel. 

FEDERAL  CASES  ON  THE  ORDINANCE,  OF  1787. 

1838  Spooner  v.  McConnell,  1 McLean,  337  (22  Fed.  Cases  No. 

13245). 

That  was  a bill  for  an  injunction  to  enjoin  the  Canal  Commis- 
sioners of  the  State  of  Ohio  from  damming  the  Maumee  Eiver 
above  its  rapids  for  the  purpose  of  supplying  the  canal  with  water. 

The  showing  was  held  insufficient  for  a preliminary  injunction 
and  the  cause  was  continued.  The  case  occupies  47  pages  of  Mc- 
Lean’s Reports.  It  specifically  holds  that  some  parts  of  the  Ordi- 
nance were  designed  temporarily  to  regulate  the  government  of  the 
Territory,  and  these  were  necessarily  abolished  on  the  change  from 
the  Territorial  to  State  government;  that  other  parts  were  de- 
signed to  he  permanent  and  were  sanctiond  by  compact  and  were 
unalterable  except  by  common  consent;  that  some  of  those  being 
subsequently  guaranteed  by  tlie  Federal  Constitution  may  be  con- 
sidered as  superseded  by  that  Federal  Constitution.  This  would 
include  the  ])rovisions  embracing  a bill  of  rights;  that  any  ])rovi- 


71)5 


sioiis  ol*  till'  OrdinniK'o  rei)ni»n;iiit  to  the  Constilulioii  ot  Ohio  rtiny 
1)0  (‘oiisidorod  as  anindlod,  siiu'o  the  (5)nstitnli()ii  of  Oliio  was  sano- 
tionod  by  (\)ngTess. 

“ But  that  provision  of  the  coiiipaet  wildcli  declared  that  the  nav- 
igable waters  falling  into  the  St.  Lawrence  and  the  Mississipj)i  and 
the  carrying  places  between  them  shall  be  common  highways  and 
forever  free  &c.,  iras  not  proposed  to  he  modified.”  (1  McLean, 
pp.  344-5.) 

“It  is  a well  established  princi])le  that  no  political  change 
in  a government  annuls  a compact  made  with  another  sover- 
eign power  or  with  individuals.  The  compact  is  protected  by 
that  sacred  regard  for  x^lighted  faith,  which  should  be  cher- 
ished alike  by  individuals  and  organized  coanmunities.  A dis- 
regard of  this  great  principle  wtould  reject  ail  the  rights  and 
advantages  of  civilization,  and  throw  us  hack  on  the  age  of 
vandalism. 

“This  comi>act  was  formed  between  }3olitical  communities 
and  the  future  inhabitants  of  a rising  territory,  and  the  States 
which  should  be  formed  within  it.  And  all  who  became  in- 
hal)itants  of  the  Territory  made  themselves  parties  to  the 
comi)act.  And  this  comx)act  so  formed  could  only  he  rescinded 

by  the  common  consent  of  those  who  were  ])arties  to  it.” 

*'#  * * # * * * 

“But  it  is  earnestly  contended  that  the  rights  asserted  by 
the  complainant  are  wholly  incompatible  with  the  sovereignty 
of  the  State,  and  with  the  provision  that  the  State  was  admit- 
ted on  an  ecpial  footing  with  the  original  States.  Does  this 
provision  mean  that  the  new  State  shall  exercise  the  same 
powers  and  in  the  same  modes  as  are  (‘xercised  by  any  other 
State? 

“Now,  this  cannot  be  the  true  construction  of  the  ])rovision, 
for  there  cannot  be  found,  ])erhaps,  any  two  States  in  the 
Union  whose  Legislative,  Judicial  and  Executive  jiowers  are 
in  every  res])ect  alike.  If  the  argument  be  sound,  that  there 
is  no  equal  footing  short  of  exact  eciuality  in  this  respect,  then 
the  States  are  not  ecpial.  But  if  the  meaning  be  that  the  peo- 
ple of  the  new  State,  exercising  the  sovereign  powers  whi(hi 
belong  to  the  x)eo])le  of  any  other  State,  shall  he  admitted  into 
the  Union,  subject  to  such  i)rovisions  in  their  fundamental  law 
as  they  shall  have  sanctioned;  within  the  I'estrictions  of  the 
Eederal  constitution,  then  the  States  are  e(iual.  lApial  in 
rank,  e(|ual  in  tlieir  })0wers  of  sovereignty,  and  only  diifer  in 
their  restrictions,  which,  in  the  exercise  of  those  ])owers,  they 
may  have  voluntarily  imx>osed  ux)on  themselves.  Thus  a State 
may,  in  her  constitution,  prohi})it  the  Legislature  from  incoi*- 
])orating  banks,  or,  in  fact,  from  pasising  any  act  of  incoi*pora- 


lion;  and  yet  tliis  State  would  })e  admitted  into  t'ne  Union  on 
an  e(iual  footing  with  tlie  other  States.” 

‘^The  same  powers  were  exercised  in  forming  a constitu- 
tion, but  in  the  distribution  of  the  powers  of  the  State  govern- 
ment they  w^ere  not  given  to  the  same  extent,  nor  were  they 
to  ])e  exercised  in  the  same  manner.  But  tliis  produces  no  in- 
ecpiality.  The  States  are  equal,  inasmucli  as  each  has,  by  its 
own  voluntary  will,  established  its  own  government,  and  has 
the  power  to  alter  it.  This  is  the  principle  on  which  the 
State  governments  are  established,  and  consequently  they  all 
stand  upon  an  equal  footing.  They  have  the  same  basis ; have 
been  formed  according  to  the  will  of  the  people,  and  may  be 
changed  at  their  discretion.”  (1  McLean,  pp.  344,  348,  349.) 

‘‘If,  then,  there  is  nothing  in  the  constitution  of  the  State 
which  is  repugnant  to  the  compact  in  the  ordinance  in  rela- 
tion to  navigable  waters,  and  the  parties  to  the  compact  have  in 
no  form  annulled  it,  and  it  is  not  inconsistent  with  that  equal- 
ity which  the  State  of  Ohio  claims  with  the  original  States,  it 
follows  that  this  compact  is  in  full  force,  and  is  a subject  of 

judicial  cognizance.”  (1  McLean,  p.  349.) 

* * # * * * * 

“The  Supreme  court  of  this  State  in  the  case  of  Williams  & 
Hogg  V.  Zanesville  Canal  and  Manufacturing  Company,  5 
Ham.,  410,  had  occasion  to  examine  the  point  now  under  con- 
sideration. 

“That  was  an  action  of  trespass,  in  wdiich  the  plaintiffs 
claimed  damages  for  the  loss  of  a boat  and  cargo  in  crossing  a 
dam  over  the  Muskingum  Eiver,  which  the  Legislature  had 
authorized  the  defendants  to  construct,  but  they  were  required 
to  make  and  keep  in  repair  a lock  in  the  dam  of  certain  dimen- 
sions, which  wmuld  afford  a safe  passage  for  boats.  This  lock 
had  fallen  out  of  repair,  in  consequence  of  which  the  loss  was 
suffered  of  which  the  plaintiffs  complained. 

“In  their  opinion  the  court  say,  ‘To  the  validity  of  certain 
statutes  as  affording  a protection  to  the  defendants,  the  plain- 
tiffs object  on  the  ground  that  they  interfere  with  the  ordi- 
nance, '&c.’  This  portion  of  the  ordinance  of  1787,  the  court 
say,  is  as  much  obligatory  upon  the  State  of  Ohio  as  our  own 
constitution.  In  truth,  it  is  more  so ; for  the  constitution  may 
be  altered  by  the  people  of  the  State,  while  this  cannot  be  al- 
tered without  the  assent  both  of  the  people  of  this  State  and 
of  the  United  States,  ihrougb  their  representatives.  It  is 
an  article  of  compact,  and  until  we  assume  the  principle  that 
the  sovereign  power  of  the  State  is  not  bound  by  compact, 
this  clause  must  be  considered  obligatory.  Certain  ‘navigable 
rivers’  in  Ohio  are  ‘common  highways.’  Of  this  character  is 
the  Muskingum  Eiver.  Every  citizen  of  the  United  States 
has  a perfect  right  to  its  free  navigation.  A right  derived, 
not  from  the  Legislature  of  Ohio,  but  from  a superior  source. 


797 


W'itli  this  riglit  tlio  Log’islature  (‘aiiiiot  interforo.  In  ollinr 
woi'ds,  thoy  (‘ainiot  hy  any  law  wlii(‘li  they  may  pass  inijxsh*  or 
ohstrnct  tlio  navigation  of  that  river.  Tliat  which  they  cannot 
do  directly  they  cannot  do  indirectly.  If  they  have  not  them- 
selves the  power  to  obstruct  or  impede  tlie  navigation,  they 
cannot  confer  this  favor  upon  an  individual  or  a corporation.” 
(1  ^[cLean,  p.  351.) 

#**##** 

“The  ])i*ovisions  of  the  ordinance  had  reference  to  the  navi- 
ga])le  rivers  and  the  carrying  places,  as  they  tlien  were.  And 
in  tliat  State  they  were  to  remain  free,  without  tax,  &c.  But 
tliis  does  not  prevent  the  Legislature  from  improving  the  nav- 
igation of  rivers  and  the  carrying  places  between  them.  Such 
improvements  can  in  no  sense  be  considered  as  repugnant  to 
the  ordinance,  but  in  promotion  of  its  great  object.  And  it 
would  seem  to  be  no  violation  of  the  compact  if  the  Legisla- 
ture should  exact  a toll,  not  for  the  navigation  of  the  rivers  in 
their  natural  state,  but  for  the  increased  facilities  established 

by  the  funds  of  the  State.”  (1  McLean,  p.  352.) 
******* 

“Navigable  rivers  and  the  carrying  places  between  them  are 
placed  on  the  same  footing  by  the  compact ; and  the  only  differ- 
ence between  them  is,  the  rivers  have  estahlished  channels, 
whilst  the  carrying  places  are  unmarked.  They  are  both  in 
their  natural  condition,  and  the  State,  it  would  seem,  is  no  more 
prohibited  from  improving  the  navigation  of  tlie  rivers  than 
the  carrying  places  between  them.  And  if  a toll  may  l)e 
charged,  for  the  increased  facilities  in  the  one  case,  for  the 
same  reason  it  may  be  in  the  other. 

“We,  thei*efore,  can  entertain  no  doubt  that  the  Legislature 
may  imi)rove,  at  their  discretion,  the  navigable  rivers  of  the 
State,  and  authorize  the  construction  of  any  works  on  them 
which  shall  not  materially  obstruct  their  navigableness.  They 
may  huild  a dam  over  the  Maumee,  if  it  shall  he  so  constructed 
with  a lock  or  otherwise,  as  not  materially  to  obstruct  its  nav- 
igation.” (1  McLean,  353.) 

1843  Palmer  v.  Commissioners  of  CuyaUofja  County,  3 McLean, 
226  (18  Fed.  Cases,  10688). 

In  this  case  the  court  adhered  to  the  decisions  in  1 McLean  ami' 
held  that  the  construction  of  a draw-bridge  over  the  Cuyahoga 
Kiver  was  not  a violation  of  the  ordinance. 

3845  Permoli  v.  First  Municipality , 3 How.,  589,  holds  by  dictum 
Ordinance  of  1787  inoiierative  in  conseijuence  of  the  ad- 
mission of  new  State  on  ecjual  footing  with  original  States. 

Note. — This  decision  related  to  territory  outside  of  the  original 


798 


Norlliwest  Territory,  viz.,  Louisiana,  and  was  ])y  its  terms  not  ap- 
1)1  ied  to  the  Nortliwest  Territory  or  States  carved  therefrom. 

Tlie  (piestion  i*aised  tliere  was  whetlier  an  ordinance  of  tiie  City 
of  New  Orleans,  enacted  Septemhei*  26,  1827,  concerning  public 
liealth,  and  forbidding  the  ex})osure  of  dead  bodies  in  a public 
church,  violated  the  religious  liberty  of  people  who  sought  to  con- 
duct ])ubli(‘  funerals,  and  in  so  doing  carry  bodies  into  the  churches. 
The  court  declined  to  take  jurisdiction.  Incidentally  the  court 
said : 

“The  princi])al  stress  of  the  argument  for  the  plaintiff  in 
error  ])roceeded  on  the  ordinance  of  1787.  The  Act  of  1805, 
C.  88,  having  provided  that  from  and  after  the  establish- 
ment of  the  government  of  the  Orleans  Territory,  tlie  inhab- 
itants of  the  same  should  be  entitled  to  enjoy  all  the  rights, 
privileges  and  advantages  secured  by  said  ordinance,  and  then 
enjoyed  by  the  people  of  the  Mississippi  Territory.  It  was 
also  made  the  frame  of  government,  with  modifications. 

“In  the  ordinance  there  are  terms  of  compact  declared  to  be 
thereby  established,  between  the  original  States  and  the  peo- 
ple of  the  States  afterwards  to  be  formed  northwest  of  the 
Ohio,  unalterable  unless  by  common  consent— one  of  which 
stipulations  is  that  ^no  person  demeaning  himself  in  a peace- 
able manner  shall  ever  be  molested  on  account  of  his  mode  of 
worship,  or  religious  sentiments,  in  the  said  Territory.’  For 
this  provision  is  claimed  the  sanction  of  an  unalterable  law  of 
Congress;  and  it  is  insisted  the  city  ordinances  above  have 
violated  it;  what  the  force  of  the  ordinance  is  north  of 
the  Ohio,  we  do  not  pretend  to  say,  as  it  is  unnecessary  for 
the  purposes  of  this  case.  But  as  regards  the  State  of  LoU’ 
isiana,  it  had  no  further  force,  after  the  adoption  of  the  State 
constitution,  than  other  acts  of  Congress  organizing,  in  part, 
the  Territorial  government  of  Orleans,  and  standing  in  con- 
nection with  the  ordinance  of  1787.  So  far  as  they  conferred 
political  rights,  and  secured  civil  and  religious  liberties  (which 
are  political  rights),  the  laws  of  Congress  were  all  superseded 
by  the  State  constitution;  nor  is  any  part  of  them  in  force, 
unless  they  were  adopted  by  the  constitution  of  Louisiana,  as 
laws  of  the  State.  It  is  not  possible  to  maintain  that  the 
United  States  hold  in  trust,  by  force  of  the  ordinance,  for 
the  people  of  Louisiana,  all  the  great  elemental  principles,  or 
any  one  of  them,  contained  in  the  ordinance,  and  secured  to 
the  people  of  the  Orleans  Territory,  during  its  existence.  It 
follows,  no  repugnance  could  arise  between  the  ordinance  of 
1787  and  an  act  of  the  Legislature  of  Louisiana,  or  a city  reg- 
ulation founded  on  such  act;  and  therefore  this  court  lias  no 
jurisdiction  on  the  last  ground  assumed,  more  than  on  the 


precedino’  ones.  In  oiir  jiid^nient,  the  (luestioii  present(Ml  })y 
the  reeord  is  exclusively  of*  State  co^Tiizan(*.e,  and  e(iually  so  in 
the  old  States  and  tlie  new  ones;  and  that  the  writ  of  (otoi* 
must  he  dismissed.”  (.‘I  ilow.,  p.  *()!().) 

Judge  McLean,  who  had  rendered  the  two  previous  de(‘isions, 
was  a member  of  tlie  court  at  the  time.  No  dissent  is  shown. 

1845  Pollard,  Sc.,  v.  Hagan,  3 How.,  212,  construes  the  navigation 
clause  of  tlie  enabling  act  for  Alabama  and  holds  it  valid  as  a 
regulation  of  commerce. 

The  case  was  ejectment  to  recover  shore  property  below  high- 
water  mark  in  the  Mobile  River.  The  court,  in  effect,  held  the 
following  propositions : 

The  stipulation  contained  in  the  6th  section  of  the  Act  of 
Congress,  passed  on  the  2d  of  March,  1819,  for  the  admission 
of  the  State  of  Alabama  into  the  Union,  viz: — ‘That  all  the 
navigable  waters  within  the  said  State  should  forever  remain 
]:)ublic  highways,  and  free  to  the  citizens  of  that  State,  and  the 
ITnited  States,  without  any  tax,  duty,  or  impost  or  toll  there- 
for, ini])osed  by  that  State,’  conveys  no  more  power  over  the 
navigable  waters  of  Alabama,  to  the  Government  of  the  United 
States,  than  it  ])ossesses  over  the  navigable  waters  of  other 
States  under  the  provisions  of  tlie  constitution.” 

And  it  leaves  as  much  right  in  the  State  of  Alahama  over 
them  as  the  original  States  ])ossess  over  navigable  waters 
within  their  respective  limits. 

The  shore  of  navigable  waters,  and  the  soils  under  them, 
were  not  granted  hy  the  constitution  to  the  United  States,  but 
were  reserved  to  the  States  resjiectively ; and  the  new  States 
have  the  same  rights,  sovereignty  and  jurisdiction  over  this 
subject  as  the  original  States.” 

The  United  States  never  held  any  muniUpal  sovereignty, 
jurisdiction,  or  right  of  soil  in  and  to  the  territory  of  which 
Alabama,  or  any  of  the  new  States,  were  formed,  except  for 
temporary  ])urposes,  and  to  execute  the  trusts  created  by  the 
acts  of  the  Virginia  and  Georgia  Legislatures,  and  the  deeds 
of  cession  executed  by  them  to  the  United  States,  and  the  trust 
created  by  the  treaty  of  the  30th  April,  1803,  with  the  Frencli 
Repiihlic  ceding  Louisiana. 

U])on  the  admission  of  Alabrma  into  the  Union,  the  right 
of  eminent  domain,  which  had  been  temporarily  held  by  the 
United  States,  [lassed  to  the  State.  Nothing  remained  in  the 
United  States  but  the  ])ublic  lands.  (3  How.,  212.) 

Respecting  the  ordinance  of  1787  the  court  said: 

“The  declaration,  therefore,  contained  in  the  compact  en~ 


soo 


1(‘r(Ml  into  tliein  w1i(‘ti  Al;il)aina  was  admitted  into  the 

Union,  ‘that  all  naviga])le  watei*s  within  the  said  State  sliall 
iorever  remain  i)nl)lie  higliways,  free  to  the  eitizens  of  said 
State,  and  of  the  United  States,  without  any  tax,  duty,  impost, 
or  toll  therefor,  imposed  by  the  said  State,’  would  he  void  if 
in(‘oiisistent  witli  the  eonstitution  of  the  United  States.  But 
is  tliis  ])rovisioTi  repugnant  to  the  eonstitution?  By  tlie  8th 
sec'tion  of  tlie  1st  article  of  the  eonstitution,  power  is  granted 
to  Oongresis  ‘to  regulate  eoinmerce  witli  foreign  nations,  and 
among  tiie  several  States.’  If,  in  the  exercise  of  this  ])ower, 
Uongress  can  impose  the  same  restrictions  u])on  tlie  original 
States,  in  relation  to  their  navigable  waters,  as  are  imposed, 
by  this  article  of  the  compact,  on  the  State  of  Alabama,  then 
this  article  is  a mere  regulation  of  commerce  among  the  sev- 
eral States,  according  to  the  constitution,  and,  therefore,  as 
binding  on  the  other  States  as  Alabama.” 

“Tn  the  case  of  Glhhons  v.  Ogden,  9 Wheat.,  196,  after  ex- 
amining the  preliminary  questions  respecting  the  regulation 
of  commerce  with  foreign  nations,  and  among  the  States,  as 
connected  with  the  subject  matter  there  in  controversy.  Chief 
Justice  Marshall  said:  ‘M^e  are  now  arrived  at  the  inquiry, 
AVliat  is  this  power?  It  is  the  power  to  regulate,  that  is,  to 
]:)rescribe  the  rule  by  which  commerce  is  to  be  governed.  This 
power,  like  all  others  vested  in  Congress,  is  complete  in  itself, 
may  be  exercised  to  its  utmost  extent,  and  acknowledges  no 
limitations  other  than  are  prescribed  in  the  constitution.’  ” 

Here  the  power  exercised  by  Congress  in  1789  in  continuing  the 
navigation  clause  of  the  Ordinance  of  1789  in  etfect,  and  exercised 
by  the  Act  of  March  3,  1817,  admitting  Alabama  into  the  Union, 
wdiich  extended  certain  poriions  of  the  Ordinance  of  1787  to  the 
Constitution  of  the  new  State,  one  of  which  was  the  navigation 
clause,  is  held  by  the  court  to  be  the  power  to  regulate  interstate 
commerce. 

The  Act  of  1789  co)itinuing  the  Ordinance  of  1787  in  effect  ivas 
the  first  act  to  regulate  interstate  commerce.  It  is  as  much  lau'  as 
the  Interstate  Commerce  Act  of  1887. 

1866  Bates  v.  Brown,  72  IT.  S.  (5  AValh),  710. 

The  U.  S.  Su])reme  Court  here  held  that  the  rule  of  common  law 
commonly  called  the  rule  of  shifting  inheritance,  is  not  in  force  in 
Illinois,  and  the  reason  assigned  is  that  the  Ordinance  of  1787  had 
provided  a different  rule. 

The  court,  in  its  preliminary  statement  of  the  case,  said: 

‘‘To  understand  the  matter  fully  it  may  be  well  to  state  that 


SOI 


ilio  C\)iii>*ressional  ()r(liiiaii('(‘  of  1787  foi-  tlio  <>()verimi(‘nt  of  tlic 
Nortlnvevsterii  Territory,  of  wliich  Illinois  was  ori^'inally  a 
part,  created  a court  which  it  declared  should  have  VK)mrnon 
law  ,jurisdi(‘tion,’  and  the  Ordinaiu'e  guaranteed  also  to  the 
people  of  the  territory  ^judicial  proceedings,  according  to  the 
course  of  the  coniinon  law.’  This  Ordinance  declared  that  the 
estates  of  persons  dving  intestate”  (here  (pioting  its  y)rovi- 
sions,  which  provide  for  distribution  in  equal  shares  aniong  all 
children,  with  no  distinction  between  wdiole  and  half  blood). 

‘On  1819,  after  Illinois  had  become  a State,  a statute  adopted 
‘the  common  law  of  England’  iu  general  terms;  and  in  1845, 
another  statute  declared  that  the  common  law  of  England,  ‘ so 
far  as  the  same  is  applicable  and  of  a general  nature,  shall 
be  the  rule  of  decision,  and  shall  be  considered  as  in  full 
force  until  repealed  by  legislative  authority.’  ” 

The  court  then  quotes  the  Illinois  Statute  of  1829,  Section  43,  on 
Intestate  Descent  of  Intestate  Estates  and  add  (the  opinion  being 
by  S WAYNE,  J.)  : 

“It  is  said  the  Ordinance  of  1787,  which  embraced  the  terri- 
tory now  constituting  the  State  of  Illinois,  and  the  acts  of  the 
legislature  of  that  State  of  the  4th  of  February,  1819,  and  of 
the  3rd  of  March,  1845,  are  to  be  considered  in  this  connec- 
tion. 

“The  Ordinance  created  a court  which  it  declared  ‘shall  have 
common  law  jurisdiction,’  and  it  guaranteed  to  the  people  of 
the  territory  ‘judicial  proceedings  according  to  the  course  of 
the  comomn  law.’  There  is  no  allusion  in  it  to  the  common 
law  but  these.  The  two  acts  of  the  Ijegislature  contain  sub- 
stantially the  same  provisions.” 

Then,  after  summarizing  the  principles  of  descent  accordiiig  to 
the  common  law,  the  court  say : 

“The  dominant  principles  in  the  British  constitution  have 
always  been  monarchical  and  aristocratic.  These  canons  tend 
to  prevent  the  diffusion  of  landed  property,  to  promote  its 
accumulation  in  the  hands  of  a few.  They  thus  conserve  the 
splendor  of  the  nobility  and  the  influence  of  the  leading  fam- 
ilies, and  rank  and  wealth  ai'e  the  bulwarks  of  the  throne.” 
* * * 

“Before  the  Kevolution,  some  of  the  colonies  had  passed 
laws  regulating  the  des<‘ent  of  real  property  upon  julnciples 
essentially  different  from  those  of  the  common  law.  In  most 
of  them  the  common  law  subsisted  only  after  the  close  of  the 
Bevolution  and  the  retuiii  of  ])eace.  It  ])revailed  in  Virginia 
until  the  act  of  her  Legislature  of  1785  took  effect,  and  it  was, 
perhaps,  the  law  u])on  this  subject  in  ‘the  Northwestern  Ter- 
ritory,’ at  the  time  of  its  cession  in  1784  by  Virginia  to  the 


802 


Ijiiitod  States.  AVitli  tlie  close  of  the  I'evolution  came  a new 
state  of  things.  There  was  no  monai'cli  and  no  privileged 
(‘lass.  The  equality  of  the  legal  rights  of  every  citizen  was  a 
inaxini  universally  recognized  and  acted  upon  as  funda- 
mental.” 

* ***#%=* 

^^The  Ordinaiu'e  ot  1787  ('ontains  a ('om])lete  series  of  pro- 
visions u})on  the  sulqect.  They  are  the  type  and  reflex  of  the 
a(dion  of  many  of  the  states  at  that  time.”  * * * 

‘'We  find  liere  not  a trace  of  the  common  law.  These  pro- 
visions are  diametrically  o])pos'ed  to  all  its  leading  maxims. 
AVe  cannot  infer  from  their  silence  that  anything  not  ex- 
pressed was  intended  to  be  adopted  from  that  source  by 
implication  or  construction.” 

There  had  been  no  legislation  by  the  State  of  Illinois  on  the  sub- 
ject of  descent  from  the  time  of  its  admission  in  1818  until  the 
enactment  of  the  Statute  of  1829.  But  the  case  finally  holds  that 
the  Ordinance  of  1787  remained  in  force  on  the  subject  until  the 
Legislation  of  1829,  although  the  estate  in  question  was  not  ac- 
quired until  1830  and  did  not  become  intestate  until  1832. 

1850  Strader  v.  Graham,  51  U.  S.  (10  How.),  82. 

Error  to  Kentucky. 

Bill  against  owner  of  steamboat  for  aiding  the  escape  of  slaves, 
and  for  lien  on  boat  therefor. 

Decree  upholding  the  lien  in  Kentucky. 

AVrit  of  error  dismissed  by  U.  S.  Court  for  want  of  jurisdiction. 

The  plaintiff  in  error  claimed,  by  virtue  of  the  slavery  provision 
of  the  Ordinance  of  1787,  that  the  decree  was  erroneous.  Taney, 
C.  J.,  said  (p.  *94)  : 

“But  it  seems  to  be  supposed  in  the  argument,  that  the 
law  of  Ohio  upon  this  subject  has  some  peculiar  force  by 
virtue  of  the  Ordinance  of  1787,  for  the  government  of  the 
Northwestern  Territory,  Ohio  being  one  of  the  States  carved 
out  of  it.” 

# ^ ^ ^ 

“The  argnment  assumes  that  the  six  articles  wliicli  that 
Ordinance  declares  to  be  perpetual  are  still  in  force  in  the 
States  since  formed  within  the  territory,  and  admitted  into 
the  Union. 

“If  this  proposition  could  be  maintained,  it  would  not  alter 
the  question.  For  the  regulations  of  Congress,  under  the  old 
Confederation  or  the  present  constitution,  for  the  government 
of  a particular  territory,  could  have  no  force  beyond  its  limits. 


803 


It  (*ertaiiily  could  not  restrict  the  power  ot  tlie  States  witliin 
their  respective  territories;  nor  in  any  manner  interfere  with 
their  laws  and  institutions;  nor  g-ive  this  (‘ourt  any  (control 
over  tlieiu.  The  Ordinance  in  (|uestion,  if  still  in  force,  could 
liave  no  more  operation  than  the  laws  of  Ohio  in  the  State  of 
Kentucky,  and  could  not  influence  the  decision  upon  the  rights 
of  the  master  or  the  slaves  in  that  State,  nor  give  this  court 
jurisdiction  upon  the  subject. 

‘‘But  it  has  been  settled  by  judicial  decision  in  this  court, 
that  this  Ordinance  is  not  in  force. 

“The  case  of  Permoli  v.  The  First  Municipality,  3 How., 
589,  depended  upon  the  same  principles  with  the  case  before 
us.’^  # # ^ ^ 

“In  the  case  above  mentioned,  Permoli  claimed  the  pro- 
tection of  the  clause  in  one  of  the  six  articles  which  provides 
for  the  freedom  of  religion,  alleging  that  it  had  been  violated 
by  the  First  Municipality.  And  he  brought  the  question  be- 
fore this  court,  upon  the  ground  that  it  had  jurisdiction  under 
the  Ordinance.  But  the  court  held  that  the  Ordinance  ceased 
to  be  in  force  when  Louisiana  became  a State,  and  dismissed 
the  case  for  want  of  jurisdiction.  This  opinion  is,  indeed, 
confined  to  the  territory  in  which  the  case  arose.  But  it  is 
evident  that  the  Odinance  cannot  be  in  force  in  the  States 
formed  in  the  Northwestern  Territory,  and  at  the  same  time 
not  in  force  in  the  States  formed  in  the  Southwestern  Terri- 
tory, to  which  it  was  extended  by  the  present  government. 
For  the  Ordinances  and  pledges  of  the  Congress  of  the  old 
Confederation  cannot  be  more  enduring  and  obligatory  than 
those  of  the  new  government;  nor  can  there  be  any  reason 
for  giving  a different  interpretation  to  the  same  words  used 
in  similar  instruments,  because  the  one  is  by  the  old  Confed- 
eration and  the  other  by  the  present  Government.  And  when 
it  is  decided  that  this  Ordinance  is  not  in  force  in  Louisiana, 
it  follows  that  it  cannot  be  in  force  in  Ohio. 

“But  the  whole  question  upon  the  Ordinance  of  1787,  and 
the  acts  of  Congress  extending  it  to  other  territory  afterwards 
acquired,  was  carefully  considered  in  Pollard  v.  Hagan,  3 
Howe,  212.  The  subject  is  fully  examined  in  the  opinion  pro- 
nounced in  that  case,  with  which  we  concur;  and  it  is  sufificieut 
now  to  refer  to  the  reasoning  and  jirinciples  by  which  that 
judgment  is  maintained,  without  entering  again  ujion  a full 
examination  of  the  (piesfion. 

“Indeed,  it  is  impossible  to  look  at  the  six  articles  which 
are  supposed,  in  the  argument,  to  be  still  in  force,  without 
seeing  at  once  that  many  of  the  provisions  contained  in  them 
are  inconsistent  with  the  ])resent  constitution.  And  if  they 
could  he  regarded  as  yet  in  operation  in  the  States  formed 
within  the  limits  of  the  Northwestern  Territory,  it  would 


l)hu‘e  tlieiii  in  an  inferior  eondition  as  compared  witli  tlie 
other  States,  and  subject  tlieir  domestic;  institutions  and  muni- 
cipal regulations  to  the  constant  supervision  and  control  of 
this  court.  The  constitution  was,  in  the  language  of  the  Ordi- 
nance, ^adofpted  ])y  common  consent,’  and  the  ])eople  of  the 
territories  must  necessarily  l)e  regarded  as  parties  to  it,  and 
hound  ])y  it,  and  entitled  to  its  benefits,  as  well  as  the  people 
of  the  then  existing  States.  It  became  the  supreme  law 
thi'ougliout  the  United  States.  And  so  far  as  any  obligations 
of  good  faith  had  been  previously  incurred  by  the  Ordinance, 
they  were  faithfully  carried  into  execution  by  the  power  and 
authority  of  the  new  government. 

‘‘In  fact,  when  the  constitution  was  adopted,  the  settlement 
of  that  vast  territory  was  hardly  begun;  and  the  joeople  who 
filled  it,  and  formed  the  great  and  populous  States  that  now 
cover  it,  became  inhabitants  of  the  territory  after  the  consti- 
tution was  adopted;  and  migrated  upon  the  faith  that  its 
])rotection  and  benefits  would  be  extended  to  them,  and  that 
they  would  in  due  time,  according  to  its  provisions  and  spirit, 
be  admitted  into  the  Union  upon  an  equal  footing  with  the 
old  States.  For  the  new  government  secured  to  them  all  the 
public  rights  of  navigation  and  commerce  which  the  Ordi- 
nance did  or  could  provide  for;  and  moreover,  extended  to 
them  when  they  should  become  States  much  greater  power 
over  their  municipal  regulations  and  domestic  concerns  than 
the  Confederation  had  agreed  to  concede.  The  six  articles, 
said  to  be  perpetual  as  a compact,  are  not  made  a part  of  the 
neve  constitution.  They  certainly  are  not  superior  and  para- 
mount to  the  constitution,  and  cannot  confer  power  and  juris- 
diction upon  this  court.  The  whole  judicial  authority  of  the 
courts  of  the  United  States  is  derived  from  the  Constitution 
itself,  and  the  laws  made  under  it. 

‘Ut  is  undoubtedly  true,  that  most  of  the  material  pro- 
visions and  principles  of  these  six  articles,  not  inconsistent 
with  the  constitution  of  the  United  States,  have  been  the 
established  law  within  this  territory  ever  since  the  Ordinance 
was  passed;  and  hence  the  Ordinance  itself  is  sometimes 
spoken  of  as  still  in  force.  But  these  provisions  owed  their 
legal  validity  and  force,  after  the  constitution  was  adopted 
and  while  the  territorial  government  continued,  to  the  Act 
of  Congress  of  August  7,  1789,  which  adopted  and  continued 
the  Ordinance  of  1787,  and  carried  its  provisions  into  execu- 
tion, with  some  modifications,  which  were  necessary  to  adapt  its 
form  of  government  to  the  new  constitution.  And  in  the 
States  since  formed  in  the  territory,  these  provisions,  so  far 
as  they  have  been  preserved,  owe  their  validity  and  authority 
to  the  constitution  of  the  United  States,  and  the  constitutions 
and  laws  of  the  respective  States,  and  not  to  the  authority  of 


llio  Ordinance  of  the  old  Confederation.  As  we  have  already 
said,  it  ceased  to  be  in  force  ui)on  the  adoption  of  the  con- 
stitution, and  cannot  now  be  tlie  sonr(‘e  of  jurisdiction  of  any 
description  in  tliis  court. 

‘‘in  every  view  of  tlie  subject,  tlierefore,  tliis  court  Inis  no 
jurisdiction  of  the  case,  and  tlie  writ  of  error  must  on  tliat 
ground  be  dismissed.” 

The  case  belongs  to  the  same  unfortunate  category  as  the  Dred 
Scott  case,  19  Howard,  393,  decided  six  years  later  (March  6, 
1857),  loaded  with  the  same  kind  of  obiter  dicta  as  xiervade  the 
Dred  Scotf  case. 

Mr.  Justice  McLean  in  his  separate  opinion  pointed  this  out, 
as  follows: 

“I  agree  that  there  is  no  jurisdiction  in  this  case,  and  that 
it  must  be  dismissed.”  * ^5= 

“The  provision  of  the  Ordinance  in  regard  to  slavery  was 
incorporated  into  the  constitution  of  Ohio,  which  received 
the  sanction  of  Congress  when  the  State  was  admitted  into 
the  Union.  The  constitution  of  the  State,  having  thus  re- 

. ceived  the  consent  of  the  original  parties  to  the  compact,  must 
be  considered,  in  regard  to  the  prohibition  of  slavery,  as  sub- 
stituted for  the  Ordinance,  and  conseciuently  all  questions  of 
freedom  must  arise  under  the  constitution,  and  not  under 
the  Ordinance. 

“This,  in  my  judgment,  decides  the  question  of  jurisdiction, 
which  is  the  only  question  liefore  us.  And  anything  that  is 
said  in  the  opinion  of  the  court,  in  relation  to  the  Ordinance, 
beyond  this,  is  not  in  the  case,  and  is,  consequently,  extr^i- 
judicial.” 

Mr.  Justice  Catron  pointed  out  the  same  thing,  and  in  particular 
that  the  obiter  dictum  of  (diief  Justice  Taney  should  not  abrogate 
the  navigation  clause  of  the  Ordinance.  He  said : 

“1.  The  sixth  article  declares,  that  slavery  shall  be  pro- 
hibited. 

“2.  And  that  absconding  slaves  there  found  shall  be  sur- 
rendered to  their  owners. 

“The  constitution  of  Ohio  incorporates  the  first  part  of 
the  sixth  article,  but  leaves  out  the  second  part.  The  State 
constitution  having  received  the  sanction  of  Congress,  the 
alteration  was  made  by  common  consent,  as  this  was  the 
mode  of  consent  contemplated  by  the  compact;  that  is  to  say, 
by  the  States  in  Congress  assembled,  whether  under  the  Con- 
federation or  present  Constitution.  This  being  an  ‘engage- 
ment entered  into’  ])efore  the  adoption  of  the  Constitution,  was 


80G 


equally  binding  on  tlie  one  Congress  as  the  other,  according 
to  tlie  sixth  article  of  the  new  constitution;  and  the  new  Con- 
gress, e(|ually  with  tlie  former  one,  had  power  to  consent  to 
alterations.  The  power  to  alter  necessarily  involves  the  power 
to  annul,  or  to  suspend;  and  when  the  'State  constitution  of 
Ohio  was  assented  to  by  Congress,  the  articles  stood  sus- 
pended, or  abolished,  as  an  engagement  among  the  states,  and 
can  now  only  be  recognized  as  part  of  the  organic  State  law. 
And  as  this  law  is  drawn  in  question  here,  no  jurisdiction 
exists  to  examine  the  State  decision. 

^‘But  in  regard  to  parts  of  the  other  five  articles,  I am 
nnwilling  to  express  any  opinion,  as  no  part  of  either  is  in 
any  degree  involved  in  this  controversy. 

‘‘The  fourth  article  secured  the  free  navigation  of  the 
waters  leading  into  the  rivers  Mississippi  and  St.  Lawrence, 
and  the  carrying  places  between  them,  as  common  highways ; 
and  exempted  them  from  tax,  impost  or  duty.  The  mouths  of 
the  two  great  rivers  were  in  possession  of  foreign  powers,  and 
closed  to  our  commerce,  at  the  date  of  the  Ordinance  and 
constitntion ; and  therefore  it  was  more  necessary  that  the 
tributaries  should  be  always  open,  and  the  carrying  places 
free,  so  that  the  Ohio  and  St.  Lawrence  could  be  reached  from 
the  great  lakes,  and  back  and  forth  either  way.  Some  of  these 
tributary  rivers  and  the  carrying  places,  it  was  known,  would 
fall  into  a single  new  State,  as  contemplated  by  the  Ordinance. 
This  is  true  of  every  carrying  place,  and  is  equally  true  as 
respects  most  of  the  rivers  leading  to  the  carrying  places; 
and  as  Congress  had  only  power  given  by  the  new  constitu- 
tion ‘to  regulate  commerce  among  the  States’  it  is  a question 
now  unsettled  whether  such  inland  rivers  and  carrying  places 
could  be  regulated,  where  the  navigation  and  carrying  places 
began  and  ended  in  a single  State.” 

“For  thirty  years,  the  state  courts  within  the  territory 
ceded  by  Virginia  have  held  this  part  of  the  fourth  article 
to  he  in  force,  omcI  binding  on  them  respectively ; and  I feel 
imivilling  to  disturb  this  udiolesome  course  of  decision,  which 
is  so  conservative  to  the  rights  of  others,  in  a case  where  the 
fourth  article  is  in  no  luise  involved,  and  when  our  opinion 
might  be  disregarded  by  the  State  courts  as  obiter,  avd  a 
dictum  uncalled  for.  When  the  question  arises  here  on  the 
fourth  article,  it  is  desired  by  me  that  no  such  embarrass- 
ment should  be  imposed  on  this  court  as  necessarily  must  be 
by  now  passing  judgment  on  the  force  of  the  fourth  article, 
and  pronouncing  that  it  stand  superseded  and  annulled.” 

The  case  is  decisive  only  on  the  question  of  jurisdiction  before 
it,  and  all  else  is,  as  Mr.  Justice  MeLean  said,  ‘^extra-judicial,’’ 
and  is,  as  Mr.  Justice  Catron  said  “obiter,  and  a dictum  uncalled 
for.” 


807 


The  })l'ain  ti’uth  is  that  (hiief  flusti(*e  Tani-:y  liad  alrea(Jy  entered 
upon  tlie  work  ot*  fortifying  the  cause  of  slavery  by  judicial  dicta. 
The  opinion  of  the  American  Bar  on  tlie  subject  is  summed  up  in 
Carson’s  History  of  the  'Supreme  Court  of  the  United  States,  7>p. 
370-371,  thus: 

‘‘AVithout  entering  into  teclinical  niceties  it  is  perliaps 
sufficient  to  say  that  the  general  judgment  of  the  profession, 
entirely  irrespective  of  the  political  questions  involved,  is  to 
the  effect  that  the  court  after  holding,  upon  consideration 
of  the  plea  in  abatement,  that  Dred  Scott  was  not  a citizen  of 
the  United  States,  and  that  therefore  the  Circuit  Court  had  no 
jurisdiction,  ought  to  have  dismissed  the  case,  without  enter- 
ing upon  the  consideration  of  the  second  question  involved, 
and  that  in  doing  so  they  transcended  the  proper  bounds  of 
judicial  authority,  and  indulged  in  mere  obiter  dicta  of  no 
legal  validity  or  conclusiveness.” 

The  court  itself  recognized  this  in  Strader  v.  Gradiam,  18  How., 
G02.  There  the  successful  party  moved  for  a judgment  for  costs 
and  the  court  decided  that  where,  as  there,  a case  is  dismissed  for 
want  of  jurisdiction,  this  court  cannot  give  a judgment  for  costs. 

They  could  not  give  a judgment  for  costs  wliere  they  had  no 
jurisdiction  to  give  a judgment  at  all,  and  they  could  not  give  a 
judgment  annulling  the  Ordinance  of  1787  without  any  jurisdiction 
to  give  a judgment  at  all.  Their  only  jui*isdiction  was  jurisdiction 
to  dismiss. 

It  will  be  noticed  that  Taney,  (3  3.,  overstates  tlie  scope  of 
the  Permoli  case,  3 How.,  581).  The  thing  decided  in  the  Peianoli 
case  was  that 

^SSo  fai*  as  they  (a('ts  of  Congress)  ('onferred  ])olitical  rights 
and  secured  civil  and  religious  liberties,  which  are  ])olitical 
rights,  the  laws  of  (h)ngress  were  all  superseded  by  the  State 
constitution.  * * * It  is  not  ])ossible  to  maintain  that  the 

United  States,  hold  in  trust  t)y  force  of  ilte  Ordinance  for  the 
])eople  of  Ijouisiana  atl  tlie  great  cleniental  principles  or  any 
one  of  them  contained  in  the  OrdinaiK'e  and  secured  to  the 
])eople  of  the  Orleans  tcnatory  during  its  existence.” 

The  Permoli  case  was  confined  to  this  proposition.  It  had 
nothing  to  do  with  the  other  portions  of  the  Ordinance. 

Again,  Chief  Justice  Taney  erred  in  his  statement  of  Pollard  v. 
Hagan,  which,  as  we  have  seen,  did  deal  with  the  navigation  clause, 


808 


Mild  tlio  statutes  I'e-enactting  it  as  \uilid  reflations  of  inter-state 
eonnnei'ee. 

Tlie  i-easoning  of  Cliief  Justice  Taney,  even  if  it  were  correct, 
and  even  if  it  Avere  the  ratio  decidendi  and  not  tlie  oibter  dictum 
wliicli  it  is,  Avould  be  good  only  as  to  the  extra-territorial  effect 
of  the  sldveri)  clause  of  tlie  Ordinance  in  Kentucky  wliere  obviously 
it  had  no  effect;  and  would  leave  the  navigation  clause  unatfected. 

The  coininents  of  AmiAiixM  Ltmcolx  upon  tlie  Dred  Scott  de- 
cision apply  with  e<|iial  force  (the  names  being  changed)  to  the 
dictum  of  Cliief  Justice  Taney  upon  the  Ordinance  of  1787.  Mi. 
Lincot-n  said : 

^^What  are  the  uses  of  decisions  of  courts?  They  have  two 
uses.  As  relates  to  property  they  have  two  uses.  First — 
they  decide  upon  the  question  before  the  court.  They  decide 
in  this  case  that  Dred  Scott  is  a slave.  Nobody  resists  that. 

‘‘Not  only  that,  but  theA  say  to  everybody  else  that  persons 
standing  just  as  Dred  Scott  stands  are  as  he  is.  That  is, 
they  say  that  when  a question  comes  up  upon  another  person, 
it  will  be  so  decided  again,  unless  the  court  decides  in  another 
way,  unless  the  court  overrides  its  decision. 

“Well,  we  mean  to  do  what  we  can  to  have  the  court  de- 
cide the  other  way.  That  is  one  thing  we  mean  to  try  to  do.” 

1 Lincoln’s  Complete  Works,  p.  255. 

“There  is  no  escape  from  this  conclusion  but  in  one  way, 
and  that  is  to  deny  that  the  Supreme  Court,  in  the  Dred  Scott 
case,  properly  applies  this  constitutional  guaranty  of  prop- 
ertx.  ” - 

^ Ibid,  417. 

“That  burlesque  upon  judicial  decisions,  and  slander  and 
profanation  upon  the  honored  names  and  sacred  history  of 
Kepublican  America,  must  be  OAmrruled  and  expunged  from 
the  books  of  authoriW.” 

Ibid,  427. 

“We  propose  so  resisting  it  as  to  have  it  reAmrsed  if  we  cau, 
and  a new  judicial  rule  established  upon  this  subject.” 

Ibid,  463. 

“I  belieAm  the  decision  was  imporperly  made,  and  I go  for 
reAmrsing  it.  ’ ’ 

Ibid,  512. 

What  was  it  that  had  aroused  the  hostility  of  the  southern  states- 
men and  jurists  to  the  Ordinance  of  1787?  Doubtless  it  resulted 


809 


from  Mr.  Webster first  sipoooli  on  Foote’s  resolution,  (Jelivered 
in  the  U.  S.  Senate  January  20,  1830.  Mi*.  Webster  said : 

‘‘At  the  foundation  of  the  constitution  of  tliese  new  North- 
western States  lies  the  celebrated  Ordinance  of  1787.  We  are 
accustomed.  Sir,  to  praise  the  law-givers  of  anticiuity  ; we 
help  to  perpetuate  the  fame^  of  Solon  and  Lyciirgus;  but  I 
doubt  whether  one  single  law  of  any  law-giver,  ancient  or 
modern,  has-produced  effects  of  more  distinct,  marked,  and 
lasting  character  than  the  Ordinance  of  1787.  That  instru- 
ment was  drawn  by  Nathan  Dane,  then  and  now  a citizen  of 
^Massachusetts.  It  was  adopted,  as  I think  I have  understood, 
without  the  slightest  alteration ; and  certainly  it  has  happened 
to  few  men  to  be  the  authors  of  a political  raeasure  of  more 
large  and  enduring  consequence.  It  fixed  forever  the  char- 
acter of  the  population  in  the  vast  regions  northwest  of  the 
Ohio,  by  excluding  from  them  involuntary  servitude.  It  im- 
jiressed  on  the  soil  itself,  while  it  was  yet  a wilderness,  an 
incapacity  to  sustain  any  other  than  free  men.  It  laid  the  in- 
terdict against  personal  servitude,  in  original  compact,  not 
only  deeper  than  all  local  law,  but  deeper,  also,  than  all  local 
constitutions.  Under  the  circumstances  then  existing,  I look 
upon  the  original  and  seasonable  provision  as  a real  good  at- 
tained. Tv^e  see  its  consequences  at  this  moment,  and  we  shall 
never  cease  to  see  them,  perhaps,  while  the  Ohio  shall  flow.” 

3 Webster’s  Works  (Little  & Brown,  1851),  pp.  263-4. 

This  was  the  speech  which  called  out  the  addresses  of  Benton 
and  Hayne.  Mr.  Webster  repeated  and  amplified  this  statement 
in  the  reply  to  Hayne. 

Bud,  277,  278,  282,  283. 

As  we  have  seen  elsewhere,  Mr.  Lincoln  adhered  to  these  views, 
and  insisted  upon  the  permanent  validity  of  the  Ordinance  of  1787. 

1853  Jolly,  et  al  v.  Terre  Haute  Draiv-Bridye  Company,  6 Mc- 
Lean, 238,  per  Leavitt  District  Judge. 

The  court  there  said: 

“The  Constitution  of  the  United  States  contains  an  explicit 
grant  of  power  to  Congress,  to  regulate  (‘ommerce  among  the 
several  States.  Under  this  grant,  there  can  be  no  question  of 
the  competency  of  Congress  to  exercise  jurisdiction  over  all 
the  navigable  streams,  to  the  extent  that  may  be  necessary  for 
the  encouragement  and  protection  of  commerce  between  two 
or  more  States.”  * * * * 

“There  is  another  ground  on  which  the  right  of  every  citi- 


1 


810 


zeii  oi*  the  United  States  to  the  free  and  unobstructed  naviga- 
tion of  the  Wabasli  river,  may  be  confidently  asserted.  The 
State  of  Indiana  is  one  of  the  States  carved  out  of  the  North- 
Avestern  Territory,  and  therefore  subject  to  the  operation  of 
tliat  article  of  the  compact  contained  in  the  Ordinance  of 
1787,  Avhich  declares  that  Uhe  navigable  waters  leading  to  the 
Mississippi  and  the  St.  Lawrence,  and  the  carrying  places 
between  the  same,  shall  be  common  highways,’  &c.  While  it 
is  admitted  that  some  of  the  articles  of  compact  in  that  Ordi- 
nance have  been  superseded  by  the  admission  of  the  States 
within  the  North  Western  Territory  into  the  Federal  Union, 
it  has  been  held  by  repeated  judicial  decisions,  that  the  solemn 
guaranty  referred  to  is  still  in  full  force,  and  is  a perpetual 
inhibition  to  such  states  from  authorizing  any  impediments 
or  obstructions  to  the  free  navigation  of  the  water-courses 
within  its  scope.”  Spooner  v.  McConnell,  et  al,  1 McLean,  337 ; 
Palmer  v.  Commissioners  of  Cuyahoga  County,  3 McLean, 

226 ; Hogg  y.  Zanesville  Man.  Co.,  5 Ohio  E.,  416. 

‘‘But  in  maintaining  the  paramount  jurisdiction  of  the 
national  government  over  navigable  streams,  and  the  opera- 
tive force  of  the  guaranty  in  the  Ordinance  of  ’87  in  regard  to 
them,  it  does  not  follow  that  the  States  are  deprived  of  all 
power  of  legislation.  Judge  McLean,  in  the  case  above  cited” 
from  the  third  volume  of  his  Eeports,  says:  ‘A  State,  by 
virtue  of  its  sovereignty,  may  exercise  certain  rights  over  its 
navigable  waters,  subject,  however,  to  the  paramount  power  of 
Congress  to  regulate  commerce  among  the  States.’  This  prin- 
ciple is  distinctly  recognized  in  all  the  cases  referred  to 
whether  arising  under  the  commercial  power  of  the  general 
government,  or  the  Ordinance  of  ’87.  It  has  never  been 
claimed  that  the  States  do  not  rightfully  possess  jurisdiction 
upon  and  over  the  navigable  Avater-courses,  within  their  limits. 

Such  a claim  is  clearly  in  derogation  of  the  sovereignty  of  the 
States,  and  therefore,  wholly  inadmissible.  But,  while  the 
right  of  the  States  is  thus  conceded,  it  is  well  settled  that,  in 
the  exercise  of  their  jurisdiction,  they  shall  not  infringe  on 
that  granted  to  the  national  government  by  the  Constitution 
of  the  United  'States ; and  that  in  reference  to  the  States 
formed  from  the  Nortli  Western  Territory,  they  cannot  disre-  • 
gard  the  provision  of  the  ordinance  referred  to.” 

•854  Columhus  Insurance  Co.  v.  Curtenius,  6 McLean,  209. 

^^By  the  Ordinance  for  the  gOAmrnment  of  the  territory 
northwest  of  the  river  Ohio,  of  1787,  it  was  provided  (article 
4)  that  the  navigable  waters  leading  into  the  Mississippi  and 
St.  Lawrence  should  be  common  highways,  and  forever  free  to 
all  the  citizens  of  the  United  States. 

'Mt  is  said  that  this  proAusion  of  the  Ordinance  is  not  in 


force.  Tliis  seems  to  be  the  doc^trine  now  established  by  tli(i 
Supreme  Court  of  the  United  States,  contrary  to  what  has 
been  the  general  understanding  for  many  years,  in  the  States 
carved  out  of  tliat  territory.”  Pernioli  v.  Tlie  First  Munici- 
pality, 3 Howard,  589;  Pollard  v.  Hagan,  3 Howard,  212; 
Strader  v.  Graham,  10  Howard,  82. 

‘Ht  was  never  doubted  but  that  any  provisions  of  the  Ordi- 
nance which  were  contrary  to  the  Constitution  of  the  United 
States,  and  the  laws  passed  in  pursuance  thereof,  or  to  the 
Constitutions  of  the  States  formed  out  of  that  territory  were 
abrogated,  because  the  ‘common  consent’  mentioned  in  the 
Ordinance  was  then  presumed.  But  it  seems  certain  that 
Congress  did  not  exactly  regard  the  Ordinance  as  at  an  end, 
by  the  adoption  of  the  Constitution  of  the  United  States,  as  is 
plain  from  the  very  first  law  on  the  subject  adapting  it  to  the 
Constitution.  1 Stat.,  50.  And  in  allowung  the  various  States 
which  were  formed  out  of  that  Territory  to  adopt  State  gov- 
ernments, provision  was  made  that  they  should  not  do  any- 
thing repugnant  to  the  Ordinance,  wfith  certain  specified  excep- 
tions. As  to  Ohio,  Act  of  April  30,  1802,  Sec.  5,  2 Stat.,  173, 
289.  As  to  Illinois,  Act  of  April  18,  1818,  Sec.  1,  3,  Stat.,  428. 
As  to  Indiana,  Act  of  April  19,  1810,  Sec.  4,  3 Stat.,  428.  And 
the  same  is  true  of  the  States  since  admitted,  Michigan  and 
AVisconsin.  And  Congress  extended  the  ])rovisions  of  this  Or- 
dinance, except  the  introductory  clause,  over  some  of  the 
Southwestern  States.  But  without  dwelling  upon  this  })art  of 
the  sul)ject,  which  is  only  mentioned  for  the  ]uirpose  of  show- 
ing hoiv  fully  this  Ordinance  ivas  folloired  up  by  Congress,  let 
us  see  how  the  (piestion  sta.ncls  u])on  Acts  of  (hmgress  ])assed 
from  time  to  time  since  the  organization  of  the  Government. 
The  (Government  stalled  with  the  declaration,  that  the  navi- 
gable waters  leading  into  tlie  Mississi})])i  should  be  common 
liighways  and  forever  free.  It  is  said  by  the  Court  in  the  case 
of  Strader  v.  Graham,  already  referred  to,  that  the  new  goV' 
ernment  ((Constitution  and  Laws  of  the  United  States),  secured 
to  the  peo])le  of  the  Noi thwestern  States  all  the  ])ublic  rights 
of  navigation  and  ('ommerce  which  the  Ordinance  did  or  could 
provide  for.  It  would  be  a curious  commentary  u})on  this 
language  to  say  'that  the  AVestern  States  can  materially  ob- 
struct or  dam  up  the  great  navigable  rivers  within  their 
liorders.  But  the  legislation  of  Congress  seems  to  warrant 
the  opinion  expressed  by  the  (‘ourt.  l^esides  the  Acts  already 
referred  to,  many  others  may  be  mentioned  as  indicating  the 
views  of  Congress  as  to  AA^estern  rivers.  In  the  Act  providing 
for  the  sale  of  lands  northwest  of  the  (Ihio  and  above  the 
mouth  of  the  Kentucky,  of  May  18,  179(5,  1 Stat.,  464,  the  ninth 
section  declares  that  all  navigable  rivers  within  the  Territory 
to  be  disposed  of  by  that  Act,  shall  be  deemed  to  be  and  remain 


l)ul)lic  lii^'liways.  iViul  so  in  relation  to  tlie  rivers  within  cer- 
tain honinlaries,  by  tlie  (itli  See.  of  tlie  Act  of  June  1,  1796,  1 
Stat.,  491.  The  same  ])rovision  was  applied  to  all  the  rivers 
of  the  Indiana  Territory,  North  of  the  Ohio  and  East  of  the 
Mississi])})i,  of  which  Illinois  then  formed  a ])art,  by  the  sixtli 
section  of  tlie  Act  of  Marcli  26tli,  1804,  2 Stat.,  277,  the  17th 
Section  of  the  Act  of  March  J,  1803,  2 Stat.,  235,  made  the 
same  rule  applicable  to  all  navigable  rivers  within  the  terri- 
tory of  the  United  States  South  of  the  State  of  Tennessee. 
And  so,  as  to  the  navigable  v/aters  in  Louisiana,  Act  Feb.  20, 
1811,  Sec.  3.  And  it  vras  an  express  condition  of  her  admission 
into  the  Union,  that  tlic  Mississippi  and  the  navigable  waters 
leading  info  the  same  should  be  forever  free.  Act  April  8,  1812. 
2 Stat.,  642,  703.  The  same  rule  was  applied  to  the  rivers  of 
Alabama,  Act  March  2,  1819.  And  to  Mississippi,  Act  March 
1,  1817,  3 Stat.,  492,  349.  And  to  Missouri,  Act  June  4,  1812, 
Sec.  15,  2 Stat.,  747.  Indeed,  without  proceeding  further,  if 
may  be  safely  affirmed  that  in  no  instance  has  Congress  per- 
mitted an  occasion  to  pass  without  declaring  that  the  Missis- 
sippi and  its  navigable  tributaries  shall  remain  public  high- 
ways and  forever  free.  These  various  enactments  clearly  prove 
the  extraordinary  solicitude  with  which  Congress  has  from  the 
very  foundation  of  the  government  watched  over  this  subject. 
It  would  seem  impossible  to  misapprehend  the  motive  of  such 
legislation. 

^‘But  it  is  said,  that  the  new  States  having  come  into  the 
Union  upon  an  equal  footing  with  the  original  States,  these 
various  laws  in  relation  to  the  navigable  rivers  are  not  bind- 
ing on  the  new  States,  unless  as  regulations  of  commerce,  and 
that,  being  contained  in  land  laws,  most  of  them  are  mere 
Territorial  regulations,  and  temporary  in  their  character. 
Now,  it  is  immaterial  whether  Congress  has  legislated  under 
the  impression  that  a part  of  the  Ordinance  of  1787  was  still 
in  force,  although  it  is  not;  provided  it  is  apparent  from  its 
whole  tenor  of  legislation  that  it  has  re-enacted  such  part 
and  given  it  continued  operation.  And  that  does  seem  to  be 
the  fact  in  this  instance.  If  we  find  a law  of  Congress,  and 
more  especially  if  we  find  a series  of  laws  all  tending  to  the 
same  result,  the  main  question  is  not,  whether  Congress  was 
looking  to  this  or  that  part  of  the  constitution  for  the  power 
to  enact,  but  is  the  power  in  the  instrument?  If  it  is,  it  is  a 
binding,  valid  law,  no  matter  what  part  of  the  constitution 
Congress  was  thinking  of  at  the  time  of  its  passage.  It  has 
sometimes  happened  that  Congress  has  passed  laws  as  they 
supposed  under  one  part  of  the  constitution,  and  the  Supreme 
Court  has  given  them  effect  under  another.  I think,  therefore, 
that  Congress  has  intended,  and  carried  that  intent  into  effect, 
to  make  the  Mississippi,  and  the  navigable  waters  leading 


81 


into  it  t'roni  this  State,  eoiuiiioii  piiblie  liigiiways  and  free  to 
all  tlio  citizens  of  tlie  United  States.” 

1867  Woodman  v.  KUhouni  Mfg.  Co.,  1 I^issell,  546: 

Tliat  was  a bill  to  restrain  the  erection  of  a dam  rvitli  locks 
and  provisions  for  navigation  in  conformity  to  a statute  of  Wis- 
consin authorizing  the  same  across  the  Wisconsin  Itiver.  The 
court  withlield  the  question  of  injunction  to  the  final  hearing, 
when  it  was  heard  upon  pleadings  and  briefs  before  Justice  Davis, 
and  Miller,  1).  J.,  and  the  bill  was  dismissed. 

W^e  have  seen  what  seven  years  later  Mr.  Justice  Davis  said  in 
the  Montello  case.  He  evidently  saw  no  inconsistency  between 
what  he  held  in  the  one  and  what  he  held  in  the  other. 

At  the  preliminary  apjilic-ation  Miller,  D.  J.,  gave  an  opinion 
sustaining  the  rights  of  the  State  to  confer  authority  to  erect  a dam 
with  locks  to  protect  the  navigation,  and  that  the  same  was  not  a 
violation  of  the  Ordinance  or  the  act  admitting  AVisconsin.  The 
reasoning  is  the  same  as  that  in  the  other  dam  and  bridge  cases, 
which  will  be  noticed  more  fully. 

1874  The  AIontello,  87  XT.  S.  (20  AAhill.),  430: 

This  case  is  quoted  elsewhere  very  fully,  and  shows  that  the 
Ordinance  of  1787  wms  regarded  by  the  court  as  a valid  regulation 
of  navigation.  The  court  said,  p.  444: 

‘‘To  preserve  the  national  character  of  all  the  rivers  lead- 
ing into  the  Mississippi  and  St.  Lawrence,  and  to  prevent  a 
monopoly  of  their  waters,  was  the  ]nirpose  of  the  Ordinance 
of  1787,  declaring  them  to  be  free  to  the  public;  and  so  im- 
portant was  the  ])rovision  of  this  Ordinance  deemed  by  Con- 
gress that  it  was  imposed  on  MTisconsin  as  a condition  of 
admission  into  the  Union.” 

It  was  imposed  in  like  manner  and  in  almost  identical  vrords  as 
a condition  to  the  admission  of  Illinois  into  the  Union. 

1877  Pound  v.  Turch,  95  U.  S.  459. 

This  was  an  action  for  injury  to  a raft  coining  down  the  Chip- 
pewa Eiver  by  defendant’s  dam.  The  defendants  pleaded  the 
Statute  of  Wisconsin,  Pr.  L.,  1857,  Chapter  235,  authorizing  the 
dam  and  booms.  By  Section  7 the  Act  ])rovided  as  follows: 

“A¥hicli  1)00111  or  booms  shall  lie  so  arranged  as  to  permit 
the  passage  of  boats  at  all  times;  and  at  times  of  running 


814 


Iiiiul]'er,  a siiriicierit  spac'e  sliall  ])e  kept  open  at  some  con- 
venient place  for  the  passing  rafts,  and  the  said  dam  or  dams 
shall  be  built  Avith  suitable  slides  for  flie  rnnnin'g;  of  lumber 
in  rafts  over  the  same,  and  the  said  dam  or  dams  and  boom 
or  booms  sliall  be  so  constructed  as  not  to  obstruct  the  run 
ning  of  lumber  rafts  in  said  river.” 

Ih'ivate  laws  of  Wisconsin  of  1857,  p.  538. 

The  court  held  that  the  statute  of  Wisconsin,  authorizing  this 
dam  Avith  this  protection  of  navigation  therein  Avas  not  unconstitu- 
tional. It  did  not  quote  the  passages  of  the  Ordinance. 

Blit  there  is  no  act  of  the  State  of  Illinois  authorizing  any  dam 
here,  so  tliat  this  case  rightly  considered  becomes  an  authority 
for  the  complainant.  The  dam  in  the  case  of  Pound  v.  Turck  would 
confessedly  have  been  a nuisance  if  it  had  not  been  authorized  by 
such  a statute ; and  in  the  case  at  bar  the  dam  is  not  authorized  by 
any  such  act. 

1882  Escanaha  Co.  v.  Chicago^  107  U.  S.,  678. 

The  validity  of  the  ordinances  of  the  City  of  Chicago,  regulat- 
ing the  opening  and  closing  of  draw  bridges  over  the  Chicago 
River,  upheld.  Upon  the  Ordinance  of  1787  the  court.  Field,  J., 
said : 

‘‘It  is,  however,  contended  here  that  Congress  has  inter- 
fered, and  by  its  legislation  expressed  its  opinion  as  to  the 
navigation  of  Chicago  River  and  its  branches;  that  it  has 
done  so  by  acts  recognizing  the  Ordinance  of  1787,  and  by  ap- 
propriations for  the  improvement  of  the  harbor  of  Chicago. 

“The  Ordinance  of  1787  for  the  government  of  the  territory 
of  the  United  States  northwest  of  the  Ohio  River,  contained 
in  its  fourth  article  a clause  declaring  that,  ‘The  navigable 
waters  leading  into  the  Mississippi  and  St.  Lawrence,  and  the 
carrying  places  between  them,  shall  be  common  highways  and 
forever  free,  as  well  to  the  inhabitants  of  the  said  territory 
as  to  the  citizens  of  the  United  States  and  those  of  any  other 
States  that  may  be  admitted  into  the  confederacy,  without 
any  tax,  impost  or  duty  therefor.’ 

“The  Ordinance  was  passed  July  13,  1787,  one  year  and 
nearly  eight  months  before  the  Constitution  took  effect;  and 
although  it  appears  to  have  been  treated  afterAvards  as  in 
force  in  the  territory,  except  as  modified  by  Congress,  and 
by  the  act  of  May  7,  1800,  c.  41,  creating  the  Territory  of  in- 
diana,  and  by  the  act  of  Feb.  3,  1809,  c.  13,  creating  the  Ter- 
ritory of  Illinois,  the  rights  and  privileges  granted  hy  the 
Ordinance  are  expressly  secured  to  the  inhabitants  of  those 


81 5 


'r(M‘i*ilori(\s ; and  tlio  ac't  of  April  18,  1818,  (\  07, 

onabllno'  tlio 'I'X'oplo  of  I llinois  'Torritory  to  form  a ('onsfjtuiiori 
and  State  ^ovorninent,  and  tlie  resolution  of  Congress  of 
Hoe.  n,  1818,  declaring  the  admission  of  the  State  into  tlie 
ITnion,  refer  to  tlie  principles  of  the  Ordinance  acording  to 
which  the  constitution  was  to  he  formed,  its  provisions  conld 
not  control  the  anthority  and  poirers  of  the  State  after  her 
admission.  Whatever  the  limitation  upon  her  powers  as  a 
government  whilst  in  a territorial  condition,  whether  from  the 
Ordinance  of  1787,  or  the  legislation  of  Congress,  it  ceased  to 
have  any  operative  force,  except  as  voluntarily  adopted  hy 
her,  after  she  became  a State  of  the  Union.  On  her  admission 
she  at  once  became  entitled  to  and.  possessed,  of  all  the  rights 
of  dominion  and  sovereignty  ndiich  belonged  to  the  original 
States.  She  was  admitted,  and  could  he  admitted,  only  on  the 
same  footing  with  them.  The  language  of  the  resolution  ad- 
mitting her  is  ^on  equal  footing  with  the  original  States  in 
all  respects  whatever.’  3 Stat.  536.  Equality  of  constitu- 
tional right  and  power  is  the  condition  of  all  the  States  of  the 
Union,  old  and  new.  Illinois,  therefore,  as  was  well  observed 
hy  counsel,  could  afterwards  exercise  the  same  power  over 
rivers  within  her  limits  that  Delaware  exercised  over  Black 
Bird  Creek,  and  Pennsylvania  over  the  Schuylkill  River. 
Pollard’s  Lessee  v.  Hagan,  3 How.,  212 ; Permoli  v.  First  Muni- 
cipality, id.  589;  Strader  v.  Graham,  10  id.  82. 

^‘But  aside  from  these  considerations,  u'e  do  not  see  that 
th(-  clause  of  the  Ordinance  upon  whPh  reliance  is  placed 
materially  affects  the  question  before  ns.  That  clause  con- 
tains two  provisions:  One,  that  the  navigable  waters  leading 
into  the  Mississippi  and  the  St.  Lawrence  shall  he  common 
highways  to  the  inhahitants ; and  the  other,  that  they  shall 
be  forever  free  to  them  without  any  tax,  impost,  or  duty 
therefor.  The  navigation  of  the  Illinois  River  is  free,  so  far  as 
ive  are  informed,  from  any  tax,  impost  or  duty,  and  its  char- 
acter as  a common  highway  is  not  affected  by  the  fact  that  it  is 
crossed^  by  bridges.  All  highways,  whether  by  land  or  water, 
are  subject  to  such  crossings  as  the  public  necessities  and  con- 
venience may  require,  and  their  character  as  such  is  not 
changed,  if  the  crossings  are  allowed  under  reasonable  con- 
ditions, and  not  so  as  to  needlessly  obstruct  the  use  of  the 
highways.  In  the  sense  in  which  the  terms  are  used  hy  pub- 
licists and  statesmen,  free  navigation  is  consistent  with  ferries 
and  bridges  across  a river  for  the  transit  of  per*sons  and 
merchandise  as  the  necessities  and  convenience  of  the  com- 
munity may  require.  In  Palmer  v.  Commissioners  of  Cuya- 
hoga County  we  have  a case  in  point.  There  application  was 
made  to  the  Circuit  Court  of  the  United  States  in  Ohio  for  an 
injunction  to  restrain  the  erection'  of  a drawbridge  over  a 


816 


I'iver  in  tliat  State  on  the  ground  tliat  it  would  obstruct  the 
navigation  of  the  stream  and  injure  the  property  of  the  plain- 
titf.  The  ai)plication  was  founded  on  the  provision  of  the 
fourtli  article  of  the  Ordinance  mentioned.  The  court,  which 
was  presided  over  by  Mr.  Justice  McLean,  then  having  a seat 
on  this  bencli,  refused  the  injunction,  observing  that  ‘This 
l)rovision  does  not  ])revent  a State  from  improving  the  navi- 
gableness of  these  waters,  by  removing  obstructions  or  by 
dams  and  locks,  so  increasing  the  depth  of  the  water  as  to 
extend  the  line  of  navigation.  Nor  does  the  Ordinance  pro- 
hibit the  construction  of  any  work  on  the  river  which  the 
State  may  consider  important  to  commercial  intercourse.  A 
dam  may  be  thrown  over  the  river,  provided  a lock  is  so  con- 
structed as  to  permit  boats  to  pass  with  little  or  no  delay,  and 
without  charge.  A temporary  delay,  such  as  passing  a lock, 
could  not  be  considered  as  an  obstruction  prohibited  by  the 
Ordinance.’  And  again:  ‘A  drawbridge  across  a navigable 
water  is  not  an  obstruction.  As  this  would  not  he  a work  con- 
nected with  the  navigation  of  the  river,  no  toll,  it  is  supposed, 
could  be  charged  for  the  passage  of  boats.  But  the  obstruc- 
tion would  be  only  momentary,  to  raise  the  draw;  and  as  such 
a work  may  be  very  important  in  a general  intercourse  of  a 
community,  no  doubt  is  entertained  as  to  the  povrer  of  the 
State  to  make  the  bridge.’  3 McLean,  226.  The  same  observa- 
tions may  be  made  of  the  subsequent  legislation  of  Congress 
declaring  that  navigable  rivers  within  the  Territories  of  the 
LTnited  'States  shall  be  deemed  public  highways.  Sec.  9 of  the 
act  of  May  18,  1796,  c.  29;  sec.  6 of  the  act  of  March  26,  1804, 
c.  35. 

“As  to  the  appropriations  by  Congress,  no  money  has  been 
expended  on  the  improvement  of  the  Chicago  River,  above  the 
first  bridge  from  the  lake,  known  as  Rush  Street  Bridge.  No 
bridge,  therefore,  interferes  with  the  navigation  of  any  por- 
tion of  the  river  which  has  been  thus  improved.  But,  if  it 
were  otherwise,  it  is  not  perceived  how  the  improvement  of 
the  navigability  of  the  stream  can  affect  the  ordinary  means 
of  crossing  it  by  ferries  and  bridges.  The  free  navigation  of 
a stream  does  not  require  an  abandonment  of  those  means. 
To  render  the  action  of  the  State  invalid  in  constructing  or 
authorizing  the  construction  of  bridges  over  one  of  its  navi- 
gable streams,  the  general  government  must  directly  interfere 
so  as  to  suiDersede  its  authority  and  annul  what  it  has  done  in 
the  matter.” 

In  this  case  the  doctrine  is  for  the  first  time  definitely  and  com- 
pletely formulated  that  the  admission  of  a State  in  the  Union  “on 
an  equal  footing  with  the  original  State  in  all  respects  whatever,” 
ipso  facto  abrogates  the  Orctlnance. 


817 


Wo  shall  see  that  tliis  is  a mistake.  The  Onlinanee  of  1787  hoimd 
Illinois,  and  it  also  hound  all  the  other  States.  This  was  true  at 
the  time  of  its  enactment.  When  the  Act  of  August  5,  1789,  was 
passed,  continuing  the  Ordinance  in  effect,  this  was  a fresh  act 
by  the  new  government  under  the  new  constitution  in  the  exercise 
of  its  power  to  regulate  interstate  commerce,  which  bound  the 
Northwest  Territory  and  all  the  other  State  alike.  And  when  in 
1818,  Congress  admitted  Illinois  into  the  Union,  imposing  the  con- 
dition that  its  constitution  shall  be  ^^Not  repugnant  to  the  Ordi- 
nance of  the  13th  of  July,  1787,’^  and  by  its  resolution  of  December 
3,  1818,  found  that  the  new  constitution  was  ‘Un  conformity  to  the 
principles  of  the  articles  of  compact  between  the  original  States 
and  the  people  in  States  in  Territory  northwest  of  the  Ohio,”  it 
continued  this  regulation  of  interstate  commerce  in  force  as  bind- 
ing alike  upon  the  new  States  and  on  the  old  States,  into  associa- 
tion with  which  she  was  admitted.  It  protected  the  Mississippi 
lliver  from  its  source  in  Minnesota  to  its  mouth  in  Louisiana,  and 
throughout  its  course  amid  all  the  States  through  which  it  passed, 
and  it  protected  the  tributaries  of  the  Mississip])i  Eiver,  forming 
highways  connecting  with  the  Great  Lakes  through  whatever 
States  they  might  lead.  It  did  bind  the  old  States  and  the  new 
alike,  and  made  no  distinction  between  them. 

The  court  had  already  in  the  IVheeling  Bridge  case,  13  How.,  518, 
upheld  the  compact  between  Virginia  and  Kentucky,  securing  the 
navigation  of  the  Ohio  Eiver,  and  held  that  it  was  ratified  by  the 
act  admitting  Kentucky  into  the  Union.  1 U.  S.  Stat.  at  Large, 
189,  and  that  it  constituted  a valid  regulation  of  commerce,  re- 
straining the  power  of  Virginia  to  obstruct  the  navigation  of  the 
Ohio  Eiver  by  erecting  a bridge  thereon. 

Again  it  will  be  seen  that  all  this  discussion  of  the  Ordinance  in 
the  Escanaba  case  is  a dictum  arguendo.  After  liaving  given  his 
view  of  the  Ordinance,  the  court,  by  Field,  J.,  says  : 

^‘But  aside  from  these  considerations,  we  do  not  see  that  the 
clause  of  the  Ordinance  upon  which  reliance  is  placed  ma- 
terially affects  the  question  before  us.  * * * * 

‘'The  navigation  of  the  Illinois  Eiver  is  free,  so  far  as  we  are 
informed,  from  any  tax,  impost,  or  duty,  and  its  character  as  a 
common  highway  is  not  affected  by  the  fact  that  it  is  crossed 
by  bridges.” 


818 


lie  simply  adopts  tlie  Illinois  doctrine,  announced  in  88  111., 
that  tile  Ordinance  is  not  violated  by  the  construction  of  a bridge 
across  one  of  the  protected  rivers.  There  was,  therefore,  no  oc- 
casion for  the  coui't  to  say  that  the  Ordinance  was  not  in  force. 
It  was  not  only  unsound  in  reasoning,  but  it  was  not  called  for  by 
the  facts  of  the  case.  It  takes  its  place  with  the  dictum  of  (diief 
Justice  Taney,  upon  which  it  rests  as  a dictum,  which  is  outside  the 
subject. 

1883  Duluth  Lumber  Co.  v.  St.  Louis  Boom,  Sc.  Co.,  17  Fed. 
liep.  419.  Miller,  J : 

^^St.  Louis  Boom  & Improvement  Company — Act  of  1872 
of  Minnesota — Bight  to  Compensation. 

“The  act  of  the  Legislature  of  Minnesota,  of  February  24, 
1872,  relating  to  the  Knife  Falls  Boom  Corporation,  authorizes 
tlie  St.  Louis  Biver  Boom  Company  to  receive,  control,  scale, 
deliver,  and  to  take  charge  of  all  loose  logs  coming  down  the 
river  within  townships  Nos.  49  and  50, — in  fact,  makes  them 
bailees  of  such  logs,  with  certain  duties  to  perform  in  regard 
thereto ; and  the  owners  of  such  logs,  whether  they  have  re- 
quested the  services  or  duties  to  Tie  performed  or  not,  are 
bound  to  compensate  the  company  therefor.”  * * * * 

“The  case  made  by  the  plaintiff  is  that  it  is  the  owner  of  a 
considerable  lot  of  logs  which  came  into  the  possession  of  the 
defendant,  the  boom  company,  and  that  they  are  entitled  to 
the  present  possession  of  them,  and  have  made  a demand, 
which  was  refused.  The  facts  seem  to  be  that  the  Duluth 
Lumber  Company  had  logs  above  the  location  of  the  boom 
company,  which  were  run  down  singly  and  irregularly,  and 
came  within  the  limits  of  the  boom  company’s  corporate  ter- 
ritory, and  were  taken  possession  of  by  that  company,  and 
certain  acts  performed  with  regard  to  them,  such  as  scaling 
them,  helping  them  over  the  rocky  places  within  the  limits 
of  the  boom  company’s  domain,  and  finally  delivering  all  of 
them  to  the  lumber  company,  except  some  that  they  retained 

on  account  of  a lien  for  the  services  to  the  whole  of  them.” 

# # # ^ 

“Something  is  said  in  this  ease  about  the  organic  law  ad- 
mitting the  State  into  the  Union;  about  the  old  act  for  the 
government  of  the  Norlh-western  Territory.  AYe  have  long 
ago  decided  that  the  original  act  concerning  the  North-western 
Territory  ceased  to  be  of  any  force  when  Congress  and  the 
State  chose  to  organize  and  admit  the  State  into  the  Union. 
That  Ordinance,  then,  is  of  no  force  in  such  a State.  Nor  do 
1 think  it  worth  while,  myself,  to  notice  the  argument  about 
the  provision  in  the  law  admitting  Minnesota  into  the  Union; 


819 


nhoiil  i\\\  iia.vii>*ab'lo  sti-(‘aiiis  i)ros(‘rv(‘(l  for  tlic^  iisa  of 

llio  (‘itizoiis  of  tlie  different  States  free  of  toll.  'Tliis  is  no  toll 
i'oi*  naviij;-ation,  in  the  ordinary  sense.  Tli(‘  word  ‘navigation,’ 
in  all  ilie  statutes  of  the  United  States,  and  in  tlie  eonj^titu- 
tioivs  and  all  the  treaties,  does  not  mean  the  running  of  saw- 
loi>\s  down  a river;  and  tliat  is  a])out  all  that  is  necessary  to 
say. 

“We  are  of  tlie  opinion  tliat  the  aetioii  in  this  case  is  not 
sustainable,  and  judgment  will  be  rendered  for  the  defendant. 

“ ft  is  proper  to  say  that  many  statutes  of  many  States,  for 
the  very  purpose  of  preserving  these  small  streams  for  the 
use  of  saw-logs  and  various  kinds  of  smaller  water-craft,  de- 
clare such  streams  navigable.  There  is  hardly  a stream  in  the 
western  country  that  can  float  a log  that  has  not,  by  statute 
of  the  State,  been  declared  to  he  navigable,  to  prevent  people 
from  putting  dams  across  it ; but  that  has  nothing  to  do  with 
the  great  point  of  the  navigability  of  streams  of  the  United 
States  concerning  interstate  navigation  or  international  navi- 
gation. Those  are  statutes  made  by  the  States  for  their  own 
uses,  and  they  can  declare,  and  often  do  declare,  that  a little 
branch  is  a navigable  stream.  That  does  not  make  it  so, 
within  the  meaning  of  any  constitutional  provision,  treaty, 
or  ordinance  of  the  United  States.” 

17  Fed.  Eep.,  419,  424,  42o. 

Here  Judge  Miller  treated  the  matter  orally,  and  quasi  in  furore 
rejected  any  suggestion  that  the  Ordinance,  or  any  statute  had 
any  application.  He  rejected  any  distinction  between  Wisconsin 
Territory,  and  the  part  of  Minnesota,  east  of  the  Mississippi  on 
the  one  hand,  and  other  States  like  Illinois.  He  treated  them  as 
alike  discharged  from  the  Ordinance,  when  in  reality  they  are 
alike  subject  to  it  and  its  re-enactments. 

1884  Wallamet  v.  Hatch,  19  Fed.  Eep.,  847,  ]:>er  Oeadv,  J. 

That  case  arose  on  a bill  of  review  to  reverse  a decree  enjoining 
the  construction  of  a bridge  across  the  Wallamet  river  at  FMrtland, 
Oregon.  The  opinion  at  the  original  hearing  was  rendered  in 
1881,  6 Fed.  Eep.,  329.  Heady,  J.,  tliere  said : 

“Again,  the  act  of  Congress  of  February  14,  1859  (11  St. 
383),  admitting  Oregon  into  the  Union,  |)rovides  (section  2) 
Hhat  all  the  navigable  waters  of  said  State  (Oregon)  shall  be 
common  highways  and  forever  free,  as  well  to  the  inhal)itants 
of  said  State,  as  to  all  other  citizens  of  the  United  States, 

without  any  tax,  dutv,  toll,  or  im])()st  therefor.’ 

* 4.  # ‘ * * * * 

“The  power  to  authorize  the  erection  of  a bridge  over  a 


navigable  water  of  a State,  for  the  convenience  of  the  in- 
liahitants  tliereof,  belongs  to  the  State  as  a part  of  its  general 
police  power.  Congress  does  not  possess  this  authority  direct- 
ly, eo  iio'uilne;  but  its  control  over  the  navigable  waters  of  the 
States,  as  a means  of  commerce,  gives  it  a practical  veto  upon 
the  power  of  the  State  in  this  respect.  Therefore,  no  State 
can  authorize  or  maintain  the  erection  of  a bridge  over  a 
navigable  water,  which  in  etfect  contravenes  or  conflicts  with 
the  law  of  Congress  concerning  the  navigation  of  the  same; 
and  the  fact  that  such  water  is  wholly  within  the  State  is  im- 
material, if  it  is  accessible  from  another  State,  or  forms  a 
part  of  a navigable  way  between  itself  and  other  States.” 

‘‘Does  the  act  of  February  14,  1859,  supra,  conflict  with  the 
act  of  the  State  Legislature  authorizing  the  erection  of  this 
bridge!” 

******* 

“Its  only  purpose  is  to  preserve  them  for  the  free  use  of 
all  the  citizens* of  the  United  States  as  common  highways. 
It  was  passed  by  Congress  in  pursuance  of  its  control  over 
them  as  a means  of  commerce  {Pollard  v.  Hogan^  3 How.,  229), 
to  secure  their  free  navigability  to  the  inhabitants  of  the 
Union,  against  the  possible  exactions  and  obstructions  of  local 
authority,  prompted  by  considerations  of  local  convenience  or 
selfishness.  The  provision,  even  to  its  very  language,  is  as  old 
as  the  articles  of  compact  between  the  original  States  and  the 
people  and  the  States  of  the  territory  northwest  of  the  Ohio, 
contained  in  the  Ordinance  of  1787'  for  the  government  of  said 
territory,  from  the  fourth  of  which  it  is  copied.  This  Ordinance 
wias  ratified  or  recognized  by  the  first  Congress  under  the 
constitution  (1  St.  50),  and  the  provisions  securing  the  freedom 
of  ‘the  navigable  waters  leading  into  the  Mississippi  and  St. 
Lawrence’  has  been  continued  in  force  in  all  the  States  formed 
out  of  said  territory  to  this  day. 

^‘Columhiis  Ins.  Co.  v.  Ciirtenius,  6 McLean,  209. 

“In  Penn.  v.  W.  S B.  Bridge  Co.,  13  How.,  518,  it  was  held 
that  a provision  in  a compact  (December  18,  1789),  between 
Virginia  and  Kentucky  concerning  the  erection  of  the  latter 
into  a State,  to  the  effect  that  the  navigation  of  the  Ohio,  so 
far  as  the  territory  of  the  two  States  joined  thereon,  ‘shall  be 
free  and  common  to  the  citizens  of  the  United  States,’  which 
was  afterwards  sanctioned  by  Congress  in  the  passage  of  the 
act  (1  St.  189),  admitting  Kentucky  into  the  Union,  was  a 
restraint  upon  the  power  of  Virginia  to  obstruct  the  naviga- 
tion of  said  river  by  the  erection  of  a bridge  thereon  within 
her  own  limits,  and  that  a bridge  so  erected,  which  was  a 


821 


substantial  obstruction  to  such  navigation,  was  a nuisance  and 
unlawful. 

^‘To  the  same  etfeot  is  the  decision  in  Columbus  Ins.  Co.  v. 
Curienius,  supra ^ in  which  it  was  held  that  Congress  had  de- 
clared, by  the  Ordinance  of  1787  and  otherwise,  that  the  navi- 
gable tributaries  of  the  Mississippi  were  free  and  common 
liighways  to  the  citizens  of  the  United  States,  and  that  there- 
fore an  act  of  the  legislature  of  Illinois,  authorizing  the  con- 
struction of  a bridge  across  the  Illinois  River,  near  Peoria, 
was  void  if  such  bridge  was  a material  obstruction  to  the 
navigation  of  said  river,  as  being  in  conflict  with  the  federal 
legislation  declaring  it  free  and  common. 

These  decisions  are  the  authoritative  and  uncontradicted 
exposition  of  the  effect  of  federal  legislation  declaring  a navi- 
gable river  forever  free  and  common  to  the  citizens  of  the 
United  States,  upon  the  otherwise  unlimited  power  of  a State 
to  obstruct  or  impede  the  navigation  thereof  within  its  own 
limits.  And  the  reasoning  upon  which  they  rest  seems  unan- 
swerable. It  is  self-evident  that  a river  cannot  be  a common 
highway,  forever  free  to  all  the  citizens  of  the  United  States, 
which  the  legislature  of  any  one  State  has  the  power  to  es- 
sentially obstruct.’’ 

The  cause  having  been  tried,  a final  decree  was  rendered  by 
Circuit  Judge  Sawyer  and  District  Judge  Deady  sitting  together, 
6 Fed.  Rep.,  780.  Sawyer,  C.  J.,  said: 

‘‘I  have  very  little  to  add  to  what  the  district  judge  has 
said.  I fully  concur  with  him  in  the  conclusions  that  he  has 
reached.  It  is  very  clear  that,  under  the  admitted  law  of  the 
case,  the  act  admitting  the  State  into  the  Union,  which  pro- 
vides that  the  navigable  waters  of  the  State  shall  be  free  and 
common  highways ; and  in  view  of  the  decision  of  the  Supreme 
Court  in  the  Wheeling  Bridge  Case,  13  How.,  518,  in  which  it 
was  held,  under  a similar  act,  that  any  obstruction  to  the 
navigation  of  the  Ohio  River  was  unlawful,  except  by  the  con- 
sent of  Congress ; and  the  judiciary  act  of  March  3,  1875,  giv- 
ing this  court  jurisdiction  of  a suit  arising  out  of  an  act  of 
Congress, — that  this  court  has  authority  to  restrain  the  de- 
fendant from  placing  any  stiaicture  in  this  river  which  will 
obstruct  its  navigation. 

******* 

‘Ht  may  be  of  importance  to  the  cities  upon  either  bank  of 
the  river  that  they  should  have  communication  by  means  of  a 
bridge;  but  these  are  considerations  to  be  addressed  to  an- 
other tribunal  than  this  court.  They  should  be  addressed 
to  Congress,  where,  upon  an  application  for  permission  to 
bridge  the  river,  these  conflicting  interests  can  be  considered 
and  adjusted  as  may  be  thought  best  for  the  public  good. 


‘Mint  this  court  umst  simply  ascertain  whether  the  bridge 
will  he  a material  obstruction  to  the  navigation  of  tlie  river. 
It  cannot  balance  tliese  conflicting  interests  and  determine 
that  the  one  will  be  more  l)enefited  by  the  bridge  than  the 
other  will  be  injured  thereby.  Its  power  is  confined  to  the 
determination  of  the  (piestion  wliether  it  will  be  a material 
obstruction  to  navigation  or  not. 

In  the  Wheeling  bridge  Case  tlie  ol)struction  caused  by  the 
bridge,  as  compared  with  the  benefit,  was  exceedingly  small, 
ddiat  suit  was  commenced  in  1849,  wdien  the  commerce  on 
the  Ohio  was  more  limited  than  now,  and  the  bridge  was  a 
(‘onnecting  link  in  a great  public  highway  by  rail  and  other- 
wise. The  referee  reported  that,  of  all  the  steam-boats  then 
running  on  the  river,  only  nine  were  prevented  from  yjassing 
the  bridge  on  account  of  the  great  height — from  63  1-2  to  80 
feet — of  tlieir  ^chimneys,’  and  they  for  only  a few  days  in 
the  year.  And  although  these  chimneys  might  have  been  short- 
ened or  lowered,  w^heii  passing  the  bridge,  by  means  of  hinges, 
and  although  the  benefit  resulting  to  navigation  in  the  in- 
creased draft  given  by  such  tall  chimneys  must  have  been 
small  in  comparison  to  tlie  benefit  to  comnnerce  resulting  from 
the  bridge,  yet  the  latter  was  determined  to  be  a violation  of 
the  act  of  Congress  declaring  the  navigation  of  the  river  ^free 
and  common  to  the  citizens  of  the  United  States,’  and  the 
court  ordered  it  abated  as  a nuisance.” 

On  the  hearing  of  the  bill  of  review,  19  Fed.  Kep.,  347,  Ueady,  J., 
said : 

^Un  The  Daniel  Ball,  10  Wall.,  557,  it  was  held  that  Grand 
River,  a comparatively  insignificant  water  lying  wholly  within 
the  State  of  Michigan,  but  empt^nng  into  the  lake  of  that  name, 
and  only  navigable  4-0  miles  from  its  mouth  to  Grand  Rapids, 
for  a boat  of  123  tons  burden,  is  a navigable  water  of  the 
United  States,  and  subject  to 'its  control  as  a highway  of  com- 
merce, interstate  and  foreign,  on  account  of  its  junction  with 

Lake  Michigan,  of  which  it  forms  a part. 
***#*#* 

Escanciba  Co.  v.  Chicago.  107  U.  S.,  678  (2  Sup.  Ct. 
Rep.,  185),  it  was  held  that  the  Chicago  River,  lying  wholly 
within  the  City  of  Chicago,  and  a little  local  stream,  compared 
with  the  AVallamet,  is  a navigable  water  of  the  United  States, 
because  it  leads  into  Lake  Michigan;  and  in  Miller  v.  City  of 
Neiv  York,  109  U.  S.,  385,  the  same  rule  was  applied  to  the 
East  River,  a water  wholly  within  the  State  of  New  York,  but 
connecting  the  Hudson  and  the  sound,  and  therefore  a high- 
way of  interstate  and  foreign  commerce.  Mr.  Justice  Field 
delivered  the  opinion  of  the  court  in  both  these  cases,  and  re- 


IVrred  to  and  relied  oil  the  above  (‘itatioii  1‘roin  the  o[)inion  of 
the  ('oiirt  in  tlie  ease  of  the  Daniel  Bell.  See  also,  Ildich,  v. 
Wallamet  L B.  Co.,  (>  Fed.  Rep.,  326.” 

The  learned  judge  then  eonsidered  the  suggestion  that  (Congress 
eonld  not  legislate  specially  for  a i^iarticnlar  river,  which  he  sliowed 
was  an  error,  and  tlie  furtlier  contention  that  Congress  could  not 
impose  conditions  on  the  admission  of  Oregon.  As  to  this  last  he 
said : 

“But  the  clause  in  section  2 of  the  act  of  1859  declaring 
the  navigable  waters  in  Oregon  to  be  ‘common  highways,’  is 
no  part  of  these  propositions,  and  does  not  even  purport  to 
derive  its  force  or  vitality  from  this  or  any  compact,  but 
solely  from  the  fact  that  it  is  an  act  of  Congress,  duly  passed 
by  it  in  pursuance  of  its  power  to  regulate  commerce.  The 
admission  of  the  State  and  the  enactment  of  the  regulation 
are  simply  coincident  in  point  of  time.  The  one  was  admitted 
unconditionally  and  the  other  enacted  absolutely;  and  the 
regulation  might  have  been  enacted  on  the  day  before  or  the 
day  after  the  admission,  or  at  any  time  since  as  well  as  then. 
But  even  if  it  had  been  made  a condition  of  the  admission  of 
the  State  into  the  Union  that  the  people  thereof  should  con- 
sent to  this  regulation,  it  would  nevertheless  be  valid,  as  an 
act  of  Congress,  because  that  body  had  the  power  to  pass  it 
without  their  consent.  Their  consent  would  add  nothing  to  its 
force  or  validity.  In  the  leading  case  on  this  subject  of  Pol- 
lard V.  Hagan,  3 How.,  221,  the  court  say  (page  229)  of  the 
following  declaration  contained  in  the  compact  entered  into 
between  the  United  States  and  Alabama,  u})on  the  admission 
of  the  latter  into  the  Union,  ‘that  all  navigable  waters  within 
the  said  State  shall  forever  remain  jiublic  highways,  free  to 
the  citizens  of  said  State  and  the  United  States,  without  any 
tax,  duty,  impost,  or  toll  therefor,  imposed  by  the  snid  State,’ 
(3  St.,  '492),  that  it  was  nothing  more  than  a regulation  of 
commerce,  and,  as  such,  a valid  and  binding  act  of  Congress, 
without  reference  to  the  su})posed  conpiact  or  the  consent  of 
the  people  of  Alabama.” 

He  then  took  up  and  dealt  with  the  remaining  contention  as 
followiS : 

“(4)  That  the  provision  in  sedion  2 of  the  ad.  of  1859 — 
‘all  the  navigable  waters  of  said  State  (Oregon)  shall  be 
common  highways  and  forever  free,  as  well  to  the  inhabitants 
of  said  State  as  to  all  other  citizens  of  the  United  States, 
without  any  tax,  duty,  im]X)st,  or  toll  therefore’ — was  not 
intended,  and  should  not  be  construed  as  a restriction  or  limi- 
tation on  the  power  of  the  State  to  impede  and  obstruct  tlie 
navigation  of  the  Wallamet  River  at  its  pleasure,  but  only 


824 


on  its  power  to  impose  a toll  upon  any  citizen  of  the  United 
States  on  acc'ount  of  such  navigation.  This  clause  liad  its 
origin  hi  Uie  fourth  of  the  articles  of  compact  of  the  ordinance 
ot  .1887,  tor  the  government  of  the  Northwest  Territory,  in 
which  it  was  provided  tliat  Ulie  navigable  waters  leading  into 
the  Mississippi  and  the  St.  Lawrence,  and  the  carrying  places 
between  the  same,  shall  he  common  highways  and  forever  free, 
as  well  to  the  inhabitants  of  said  Territory  as  to  the  citizens 
of  the  United  States,  and  those  of  any  other  States  that  may 
be  admitted  into  the  confederacy,  without  any  tax,  impost  or 
duty  therefor,’  and  has  been  applied  to  the  States  admitted  to 
the  Union  since  the  formation  of  the  constitution,  and  formed 
out  of  territory  other  than  that  included  in  the  ordinance,  it 
being  generally  supposed,  until  a comparatively  late  day,  that 
these  articles  of  compact,  and  particularly  the  clause  in  ques- 
tion, continued  in  force  in  the  States  formed  out  of  such  ter- 
ritory, except  so  far  as  altered  by  ^common  consent.’  Strader 
V.  Graham,  10  How.,  97,  McLean  and  Caton,  JJ. ; Palmer  v. 
Com’rs  Cuyahoga  Co.,  3 McLean,  226;  Columbus  Ins.  Co.  v. 
Curtenius 6 McLean,  209.  It  is  admitted  that  the  provision 
does  prohibit  this  State  from  imposing  any  tax  or  toll  on  any 
citizen  of  the  United  States  on  account  of  the  navigation  of 
the  river.  But  the  authority  of  the  national  government  to 
restrain  the  State  in  this  particular  is  no  clearer  than  it  is  to 
prevent  the  State  from  authorizing  or  causing  obstructions  to 
tne  navigation  of  the  river  that  may  as  effectually  deprive  the 
citizen  of  the  United  States  of  its  use  as  a highway  as  any  tax 
or  toll  could. 

******* 

‘‘And  in  this  connection  it  should  be  remembered  that  the 
court  did  not  decide  that  the  act  of  1859  prohibited  the  erec- 
tion of  any  bridge  across  the  Wallamet.  It  prohibits,  of 
course,  the  erection  of  a low,  solid  bridge,  for  that  would  be 
an  impassable  barrier — a complete  closing  of  the  highway. 
And  it  is  equally  certain  that  it  does  not  prohibit  the  erection 
of  a high,  suspension  bridge  under  which  vessels  navigating 
the  river  might  pass  without  hindrance  or  delay.  Neither 
does  it  prohibit  a low  bridge,  properly  constructed  with  a 
good  and  sufficient  draw,  through  which  vessels  may  pass 
without  unnecessary  danger  or  delay — the  commerce,  size  and 
condition  of  the  river,  as  well  as  the  state  of  the  art  of  such 
bridge  building  being  taken  into  consideration.  It  is  well 
known  that  all  highways,  whether  of  land  or  water,  are  sub- 
ject to  be  crossed  by  other  highways.  The  commerce  of  the 
country  cannot  be  conducted  on  parallel  lines.  But  where 
and  in  what  manner  such  crossing  shall  be  made  or  allowed 
depends  largely  upon  the  particular  circumstance  of  each  case. 

Hatch  V.  Wallamet  I.  B.  Co.,  supra.^^ 

* * * * * * * 


825 


“^riio  d(H‘isi()ii  in  Esca/naba  Co.  v.  Chlcdfjo,  supra,  so  rniK']i 
relied  on  by  tlie  phiintiff  herein,  is  not  in  conflict  with  these 
A^iew's.  In  a legal  point  of  view,  the  case  is  not  new,  though  it 
contains  some  wliolesonie  suggestions  ux)on  the  application 
of  the  law  to  the  facts  and  circumstances  of  that  case,  whicli 
are  peculiar  and  altogether  different  from  this.  A small 
bayou,  called  a river,  with  a current  less  than  a mile  an  hour, 
not  a mile  in  length  below  its  two  branches,  not  exceeding  two 
miles  in  length  each,  not  naturally  over  150  feet  in  width,  and 
lying  in  the  heart  of  a great  city,  was  deepened  and  widened 
so  as  to  serve  as  a canal  or  convenient  waterway,  whereon  to 
move  the  lake  boats  from  the  harbor  in  the  lake  outside,  into 
which  it  drained,  to  the  docks  and  warehouses  along  its  banks. 
Over  it  there  are  a number  of  draw-bridges,  erected  by  public 
authority,  on  which  pass  daily  great  numbers  of  people,  par- 
ticularly in  going  to  and  returning  from  their  business  and 
employment  in  the  morning  and  evening.  Amer.  Cycle.,  Chi- 
cago. The  city,  by  authority  of  the  State,  and  with  a Anew  of 
preventing  the  inconvenience  resulting  from  the  unregulated 
and  conflicting  use  of  the  bridges  and  the  waterway,  passed 
an  ordinance  requiring  the  draws  to  be  closed  for  the  l3enefit 
of  the  land  travel  for  one  hour  in  the  morning  and  evening,  and 
limiting  the  period  during  which  a draw  might  be  kept  open 
for  the  passage  of  vessels  to  ten  minutes  at  any  one  time.  The 
suit  did  not  involve  the  right  to  build  the  bridges,  nor  the  suf- 
ficiency of  the  draws.  The  right  of  the  city  on  both  these 
points  was  taken  for  granted,  and  the  only  question  made  and 
decided  was  whether,  under  the  circumstances,  this  was  a rea- 
sonable regulation,  one  that  did  not  needlessly  obstruct  the 
use  of  the  waterway,  and  the  court,  if  I may  be  alloAved  to  say 
so,  very  properly  and  wisely  held  that  it  was.  The  case  was 
brought  in  the  Circuit  Court  of  the  United  States  upon  the  as- 
sumption that  the  provision  of  the  fourth  article  of  compact  of 
the  ordinance  of  1787,  whereby  the  navigable  waters  of  the 
Northwest  Territory  were  declared  ‘common  highways’  was 
still  in  force  in  Illinois,  and  therefore  the  reasonableness  of 
the  city  ordinance,  when  judged  by  this  United  States  law, 
was  a federal  question,  and  the  national  courts  had  jurisdiction 
of  the  casCy  and  the  decision  was  actually  made  upon  this 
hypothesis.  But  the  learned  justice  who  delivered  the  opinion 
of  the  court  went  further,  and  said  that  by  the  admission  of 
Illinois  into  the  Union  ‘on  an  equal  footing  with  the  original 
States  in  all  respects  whatever,’  the  ordinance  ceased  to  have 
any  effect  within  her  limits,  and  therefore  there  was  no  law  of 
the  United  States  regulating  the  use  of  the  navigable  waters 
of  the  United  States  within  the  'State  of  Illinois,  and  therefore 
the  latter  was  the  judge  of  what  Avas  reasonable  in  the  prem- 
ises. 


820 


“I'lie  ('ases  cited  in  support  of  tiiis  latter  (‘onclusion  are 
PolUu'd  V,  llar/av,  3 Tiow.,  212;  Permoli  v.  Ne)v  Orleans,  Id., 
589,  and  Strader  v.  (iraliani,  10  How.,  82.  By  tlie  first  one,  as 
we  liave  seen,  it  was  simply  lield  that  Congress  cannot,  by  any 
('oni])act  or  (‘ondition  made  witli  or  laid  upon  a State  on  lier 
admission  into  the  Union,  restrain  or  limit  her  municipal 
power  as  such  State,  but  that,  if  the  subjejct  of  the  compact  or 
(‘ondition  is  within  tlie  power  of  (Congress  to  enact  or  regulate, 
without  the  consenf  of  the  State — as  to  declare  that  the  navi- 
gable waters  therein  shall  be  ^common  highways’— it  is  good 
a.s  a law.  In  PennoU’s  ease  the  court  only  held  that  so  much 
of  the  articles  of  compact  as  secured  religious  freedom  to  the 
inhabitants  of  the  Territory  of  Orleans — the  same  having 
been  specially  extended  there  by  Congress — ceased  to  have  any 
force  or  effect  therein  upon  the  admission  of  the  Territory 
into  the  Union  as  the  State  of  Louisiana,  because  the  subject 
of  religious  freedom  in  a State  was  beyond  the  power  of  Con- 
gress, and  exclusively  vUthin  that  of  the  State.  In  Strader’s 
ease  it  vras  decided  on  a writ  of  error  to  the  Supreme  Court  of 
Kentucky  that  the  condition  of  a negro  held  as  a slave  in  that 
State,  and  who  had  been  allowed  to  visit  Ohio,  but  afterwai'ds 
returned,  was,  after  such  return  and  in  said  State,  a ([uestion 
arising  solely  under  the  laws  of  Kentucky,  and  therefore  not 
within  the  jurisdiction  of  the  Supreme  court.  But,  in  deliv- 
ering the  opinion  of  the  court,  Mr.  Chief  Justice  Taney,  refer- 
ring to  some  sort  of  claim  that  had  been  made  in  the  argu 
ment  that  the  provision  in  the  articles  of  compact  of  the  ordi- 
nance of  1787,  prohibiting  slavery  in  the  Northwest  Territory, 
of  which  Ohio  was  a part,  had  some  bearing  on  the  question 
of  the  status  of  the  negro,  denied  that  it  could  have  any  effect 
outside  of  such  Territory;  and  then  took  occasion  further  to 
say  that  the  ordinance  wms  no  longer  in  force,  even  in  Olu’o, 
where  it  had  been  superseded  by  the  organization  and  admis- 
sion of  the  Territory  into  the  Union  as  a State,  and  added  that 
it  had  been  so  decided  in  the  cases  of  Permoli  v.  New  Orleans 
and  Pollard  v.  Hagan,  supra.  But  this  statement,  tlioiigh  true 
generally,  and  in  the  light  in  which  the  chief  justice  was  co]i- 
sidering  the  articles — that  is,  so  far  as  they  trenched  upon 
the  municipal  power  of  the  State,  or  were  inconsistent  with 
its  control  over  its  domestic  affairs — was  not  otherwise  accu- 
rate or  correct.  And  for  this  reason  both  Justices  ^[cLeax  and 
C'ATEox,  while  assenting  to  the  decision  that  the  ordinance  had 
no  application  to  the  case,  in  any  view  of  the  matter,  and  that 
the  court  had  no  jurisdiction  to  review  the  judg]uent  of  the 
Kentucky  court,  protested  against  this  dictum  of  the  chief 
justice,  the  latter  putting  his  dissent  especially  on  tire  naviga- 
tion clause  of  the  fourth  article  of  the  compact,  and  saying: 

‘For  thirty  years,  the  State  courts  within  the  territory 


827 


('(hIchI  by  Virg'inia  have  held  this  ‘])art  of  the  rourth  artic^le  to 
be  ill  force,  and  binding  on  them  respeetively ; and  \ feel  un- 
willing to  (iistiirb  this  wholesome  ('ourse  of  decision,  wliicli  is 
so  conservative  of  tlie  rights  of  otliers,  in  a case  where  the 
fourth  article  is  nowise  involved,  and  when  our  opinion  might 
be  disregarded  by  the  State  courts  as  ohiter  and  a dictivni 
uncalled  for.’ 

‘‘And,  as  we  have  seen,  the  only  question  decided  in  Per- 
holi’s  case  was  that  the  clause  in  the  compact  securing  re- 
ligious freedom  to  the  inhabitants  of  the  territory  was  nec- 
essarily superseded  upon  its  admission  into  the  Union  as  a 
State,  while  it  is  admitted  that  the  principle  of  this  ruling 
would  include  all  similar  provisions  in  the  compact.  In  Pol- 
lard V.  Hagan,  while  it  was  held  that  a State  could  not  be  ham- 
pered or  bound,  in  its  admission  into  the  Union,  with  condi- 
tions or  compacts  that  would  limit  or  restrain  its  municipal 
power  and  right,  as  compared  with  the  other  States  therein,  it 
was  distinctly  decided  that  the  clause  in  the  ordinance,  as  ap- 
plied to  Alabama  by  the  Act  of  Congress  of  March  2,  1819  (3 
St.,  489),  authorizing  the  people  of  that  territory  to  form  a 
constitution,  declaring  the  navigable  waters  of  the  future 
State  ‘common  highways,’  was  not  such  a condition,  but  a 
valid  law  which  Congress  had  the  power  to  enact,  whether  the 
waters  were  within  a State  or  Territory. 

“I,  therefore,  respectfully  submit  that  the  clause  in  the 
fourth  article  of  the  compact  in  the  ordinance  of  1787,  relat- 
ing to  the  navigable  waters  in  the  Northwest  Territory,  hav- 
ing been  enacted  by  Congress  (1  St.,  50),  was  a valid  commer- 
cial regulation  as  to  the  navigable  waters  in  said  territory  or 
'the  States  afterwards  formed  therein  imfil  repealed  hy  it,  and 
therefore  it  is  still  in  force  in  Illinois. 

“ But  be  this  as  it  may,  the  decision  does  not  touch  the  (jues- 
tion  of  the  validity  or  force  and  etfect  of  the  Act  of  1859.  Foi* 
on  what  possible  ground  can  it  be  claimed  that  the  admission 
of  Oregon  into  the  Union  set  aside  or  superseded  an  otherwise 
valid  clause  in  the  very  act  of  submission,  declaring  the  navi- 
gable watei's  of  the  future  State  ‘common  highways?’ 

“This  case,  having  been  heard  before  the  Circuit  judge,  and 
the  decree  under  review  having  been  made  by  him,  I thought 
1 ought  not  to  decide  the  matter  witliout  consulting  him.  A(‘- 
cordingly,  I submitted  this  opinion  to  Judge  Sawyer,,  wuth 
coj)ies  of  the  briefs  of  counsel,  and  he  has  authorized  me  to 
say  that  he  concurs  in  it.” 

1887  Willamette  Iron  P ridge  Co.  v.  Hatch,  125  U.  S.,  1. 

This  case  went  on  appeal  to  the  Su})reine  (*ourt  of  the  [Inited 
States.  In  tlie  statement  of  the  case  the  (*ourt  mentions  that  “on 
the  18th  of  Octobei',  1878,  the  Legislature  of  Oregon  passed  an  Ad 


828 


eniillod  ‘An  Act  to  aiitliorize  tlie  coTistriiction  of  a bridge  on  the 
Willamette  ]\iver,  etc.,’  aTul  inoceeded  to  state  that  the  bridge  in 
question  was  Jmilt  under  this  authority.  Bradley,  J.,  delivered  the 
opinion.  On  the  subject  now  before  us  lie  said: 

“But,  as  we  liave  stated,  the  court  below  held  that  the  Act 
of  (’ongress  of  1859  was  a law  which  prohibited  any  obstruc- 
tions or  impediments  to  the  navigation  of  tlie  public  rivers  of 
Oregon,  including  that  of  the  AVillamette  Eiver.  Was  it  such 
an  act!  Did  it  have  such  an  effect! 

“The  clause  in  question  had  its  origin  in  the  4th  article  of 
the  compact  contained  in  the  ordinance  of  the  old  Congress  for 
the  government  of  the  territory  northwest  of  the  Ohio,  adopted 
July  13fh,  1787,  in  which  it  was  amongst  other  things  de- 
clared that  Ahe  navigable  waters  leading  into  the  Mississippi 
and  St.  Lawrence,  and  the  carrying  places  between  the  same, 
shall  be  common  highways  and  forever  free,  as  well  to  the  in- 
habitants of  the  said  territory  as  to  the  citizens  of  the  United 
States,  and  those  of  any  other  States  that  may  be  admitted 
into  the  confederacy,  without  any  tax,  impost  or  duty  therefor.’ 
1 Stat.,  52  n.  This  court  has  held  that  when  any  new  State 
was  admitted  into  the  Union  from  the  North  West  Territory, 
the  ordinance  in  question  ceased  to  have  any  operative  force 
in  limiting  its  powers  of  legislation  as  compared  with  those 
possessed  by  the  original  States.  On  the  admission  of  any 
such  new  State,  it  at  once  became  entitled  to  and  possessed  all 
the  rights  of  dominion  and  sovereignty  which  belonged  to  them. 
See  the  cases  of  Pollard^ s Lessee  v.  Hagan,  supra;  Permoli  v. 
First  Municipality,  3 How.,  589;  Escanaha  Co.  v.  Chicago; 
Cardwell  v.  American  Bridge  Co.;  Huse  v.  Glover;  qua  supra. 
In  admitting  some  of  the  new  States,  however,  the  clause  in 
question  has  been  inserted  in  the  law,  as  it  was  in  the  case  of 
Oregon,  whether  the  State  was  carved  out  of  the  territory 
northwest  of  the  Ohio,  or  not;  and  it  has  been  supposed  that  in 
this  neiv  form  of  enactment,  it  might  he  regarded  as  a regula- 
tion of  commerce,  which  Congress  has  the  right  to  impose. 
Pollard^ s Lessee  v.  Hagan,  3 How.,  212,  230.  Conceding  this 
to  he  the  correct  vietv,  the  question  then  arises,  ivhat  is  its  fair 
construction?  What  regulation  of  commerce  does  it  atfect! 
Does  it  prohibit  physical  obstructions  and  impediments  to  the 
navigation  of  the  streams  ! Or  does  it  prohibit  only  the  impo- 
sition of  duties  for  the  use  of  the  navigation,  and  any  dis- 
crimination denying  to  citizens  of  other  States  the  equal  right 
to  such  use!  This  question  has  been  before  this  court,  and  has 
been  decided  in  favor  of  the  latter  construction. 

“It  is  obvious  that  if  the  clause  in  question  does  prohibit 
physical  obstructions  and  impediments  in  navigable  waters, 
the  State  Legislature  itself,  in  a State  where  the  clause  is  in 


829 


force,  would  not  have  tlie  power  to  cause  or  authorize  sucli 
obstructions  to  be  made  without  the  consent  of  Congress.  But 
it  is  well  settled  that  the  Legislatures  of  such  States  do  have 
the  same  power  to  authorize  the  erection  of  bridges,  dams,  etc., 
in  and  upon  the  navigable  waters  wholly  within  their  limits, 
as  have  the  original  States,  in  reference  to  which  no  such 
clause  exists.  It  was  so  held  in  Pound  v.  Turck,  95  U.  S.,  205, 
in  reference  to  a bridge  without  a draw,  erected  on  the  Amer- 
ican River  in  California,  which  prevented  steamboats  from 
going  above  it;  and  in  Hamilton  v.  Vicksburg,  £c.,  Railroad 
Co.,  119  U.  S.,  280,  relating  to  railroad  bridges  in  Louisiana; 
in  all  which  cases  the  clause  in  question  was  in  force  in  the 
States  where  they  arose,  and  in  none  of  them  was  said  clause 
held  to  restrain  in  any  degree  the  full  power  of  the  State  to 
make,  or  cause  to  be  made,  the  erections  referred  to,  which 
must  have  been  more  or  less  obstructions  and  impediments 
to  the  navigation  of  the  streams  on  which  they  were  placed. 
In  Cardwell  v.  American  Bridge  Co.  the  two  alternate  con- 
structions of  the  clause  above  suggested  were  brought  to  the 
attention  of  the  court,  and,  on  consideration,  it  was  held  as 
follows:  ^Upon  the  mature  and  careful  consideration  which 
we  have  given  in  this  case  to  the  language  of  the  clause  in 
the  act  admitting  California,  we  are  of  opinion  that,  if  we 
treat  the  clause  as  divisible  into  two  provisions,  they  must  be 
construed  together  as  having  but  one  object,  namely,  to  insure 
a highway  equally  open  to  all  without  preference  to  any,  and 
unobstructed  by  duties  or  tolls,  and  thus  prevent  the  use  of 
the  navigable  streams  by  private  parties  to  the  exclusion  of 
the  public,  and  the  exaction  of  any  toll  for  their  navigation; 
and  that  the  clause  contemplated  no  other  restriction  upon 
the  power  of  the  State  in  authorizing  the  construction  of 
bridges  over  them  whenever  such  construction  would  promote 
the  convenience  of  the  public.’  In  Hamilton  v.  Vicksburg , Sc., 
Railroad  Co.  it  was  said:  ^llntil  Congress  intervenes  in 
such  cases,  and  exercises  its  authority,  the  power  of  the  State 
is  plenary.  When  the  State  provides  for  the  form  and  charac- 
ter of  the  structure,  its  directions  will  control,  except  as 
against  the  action  of  Congress,  whethei*  the  bridge  be  with  or 
without  draws,  and  irrespective  of  its  effect  upon  navigation’; 
question  in  Cardivell  v.  American  Bridge  Company  was  reiter- 
ated, namely,  that  it  was  intended  to  prevent  any  discrimina- 
tion against  citizens  of  other  States  in  the  use  of  navigable 
streams,  and  any  tax  or  toll  for  their  use.  In  Huse  v.  Glover, 
119  U.  S.,  543,  where  a portion  of  the  Illinois  River  had  been 
improved  by  the  State  of  Illinois,  by  the  erection  of  locks  in 
the  river,  and  a toll  was  charged  for  passing  through  the 
same,  it  was  held  that  this  was  no  encroachment  upon  the 
power  of  Congress  to  regulate  commerce,  and  that  whilst  the 


ordimuKH^  oi*  1787  was  no  longer  in  force  in  Illinois,  yet,  if  it 
were,  tlie  ('onstnudion  g'iven  to  the  clause  in  the  C'ardwell  case 
was  approved,  and  the  following  o!)servation  ,was  made: — ‘As 
thus  ('onstrned,  tlie  clause  would  [)revent  any  exc'hisive  use  of 
the  navigable  waters  of  tlie  State — a possible  farming  out  of 
the  pi-ivilege  of  navigating  tlieni  to  particular  individuals, 
(‘lasses  or  corporations,  or  by  vessels  of  a particular  cliarac- 
ter.’  It  was  also  held  that  the  exaction  of  tolls  for  passage 
through  the  locks  as  a compensation  for  tlie  use  of  tlie  arti- 
ficial facilities  constructed,  rvas  not  an  impost  upon  tlie  navi- 
gation of  the  stream.  The  same  views  are  held  in  the  recent 
case  of  Sands  v.  Manistee  River  Improvement  Co.,  123  U.  S., 
288.” 

******* 

“What  the  people  of  the  old  States  wished  to  secure  was 
the  free  iLse  of  the  streams  and  carrying  places  in  the  North- 
west Territory,  as  fully  as  it  might  be  enjoyed  by  tbe  inhab- 
itants of  tliat  Territory  themselves,  without  any  impost  or 
discriminating  burden.  The  clause  in  question  cannot  be  re- 
garded as  establishing  the  police  poiver  of  the  United  States 
over  the  rivers  of  Oregon,  or  as  giving  to  the  federal  courts 
the  right  to  hear  and  determine,  according  to  federal  law, 
every  complaint  that  may  he  made  of  am  impediment  in,  or  an 
encroachment  upon,  the  navigation  of  those  rivers. 

“We  do  not  doubt  that  Congress,  if  it  saw  fit,  could  thus 
assume  the  care  of  said  streams,  in  the  interest  of  foreign  and 
interstate  commerce;  we  only  say  that,  in  our  opinion,  it  has 
not  done  so  by  the  clause  in  c[uestion.’’ 

We  take  it  up  out  of  chronological  order,  because  it  is  a con- 
tinuation of  the  cases  just  considered. 

It  will  be  seen  that  Mr.  Justice  Bkadley  here  concedes  it  to  be 
the  correct  view  that  the  navigation  clause  of  the  Ordinance  of  1787 
as  re-enacted  in  the  legislation  of  the  new  Congress  under  the 
Constitution  of  1789  is  valid  legislation  as  an  exercise  of  the  power 
to  regulate  interstate  commerce. 

As  we  have  seen,  the  new  Congress  passed  an  act  on  August  5, 
1789,  continuing  the  provisions  of  the  old  ordinance  in  etfect.  In 
1796,  by  the  Act  establishing  the  office  of  surveyor  general,  they  re- 
peated this  very  clause  as  to  these  very  lands.  In  the  Act  of 
1801,  establishing  the  Indiana  Territory,  they  repeated  it  again. 
And  finally  Congress  imposed  it  as  a condition  upon  Illinois  by  the 
Act  of  1818,  and  Illinois  acceded  to  it  and  recited  that  she  did  by 
the  preamble  of  her  constitution,  and,  again.  Congress,  by  resolu- 


tioii  adinittiiii*'  Illinois,  tlie  ('onstituiion  with  sucli  i-(‘(*ital  to 

he  ill  eoiifonnity  with  liie  jirovisioiis  of  the  OnliTianee. 

There  is,  therefore,  no  ground  left  for  the  eontention  that  this 
[irovision,  thus  four  times  repeated  as  to  Illinois,  is  not  in  foree. 

The  thing  decided  the  Supreme  Court,  Bradley,  J.,  is,  that 
these  acts  do  not  in  and  of  tliemselves  assume  the  care  of  the 
streams,  and  constitute  federal  policing  thereof,  which  is  para- 
mount and  exclusive;  and,  secondly,  that  the  proposed  liridge  was 
not  a nuisance  per  se.  Neither  of  these  ciuestions  involve  the  ques- 
tion whicli  is  before  the  court  in  the  case  at  bar.  That  question 
may  be  stated  as  follows: 

Has  the  dedication  of  the  Des  Plaines  Biver  as  a free,  common 
highway  been  protected,  and  if  so  when  and  by  what  means?  As 
to  this  (juestion  the  State  insists  that  the  Ordinance  of  1787  was 
the  act  of  a sovereign  proprietor  that  not  only  governed  the  terri- 
tory but  owned  the  territory,  and  in  this  act  of  sovereign  propri- 
etorship the  United  States  of  the  confederation  dedicated  this  river 
to  be  ever  a free  public  highway,  and  that  the  Congress  of  the 
United  States  under  the  new  Constitution  of  1789  reaffirmed  the 
dedication  by  the  Act  of  1789,  hj  the  Acts  of  1796,  and  by  the  Acts 
of  1804,  and  imposed  upon  Illinois,  as  a condition  of  admission  to 
the  Union,  that  her  constitution  should  not  be  repugnant  to  that 
dedication. 

Now,  the  Supreme  court,  by  Mr.  Justice  Bradley,  says : 

‘Ht  has  been  supposed  that  in  this  new  form  of  enactment  it 
might  be  regarded  as  a regulation  of  commerce  which  Con- 
gress has  the  right  to  impose.  Concedincj  this  to  he  the  correct 
view,  the  question  then  arises  what  is  its  fair  construction?” 

And  he  answered  this  by  saying  that  it  prohibits  only  the  impo- 
sition of  duties  for  the  vse  of  the  navigation,  and  could  any  dis- 
crimination deny  to  citizens  of  other  States  the  pqiial  rir/Jit  to  such 
use. 

This  construction  is  entirely  sufficient  for  the  purposes  of  the 
state  in  the  case  at  bar.  It  concedes  that  there  is  a valid  dedica- 
tion of  a highway,  that  it  was  made  as  a regulation  of  interstate 
commerce  by  the  Congress  under  the  Statute  of  1789,  and  that  it  is 
still  in  force,  but  declines  to  give  it  federal  x)olicing,  turning  that 


832 


over  to  tlic  State  authorities.  And  for  that  reason  the  ease  was 
brouglit  in  the  State  court. 

3884  Cardivell  v.  Bridge  Co.,  113  U.  S.,  205. 

This  was  a bill  for  the  removal  of  a bridge  over  the  American 
River  in  California.  The  bill  was  dismissed  on  demurrer,  and  the 
decree  was  affirmed  in  the  court  above. 

In  tlie  statement  of  the  case  it  is  said  that  ‘‘the  defendant  was  a 
corporation,  organized  under  the  laws  of  California,  and  pursuant 
to  the  authority  conferred  hy  an  act  of  its  Legislature,  had  con- 
structed a bridge,’^  etc. 

Field,  J.,  delivered  the  opinion,  and  said : 

“The  complainant,  however,  contends  that  Congress  has 
intervened  and  expressed  its  will  on  this  subject  by  a clause 
in  the  Act  of  September  9,  1850,  9 Stat.,  452,  admitting  Cali- 
fornia as  a State  into  the  Union,  which  declares  ‘that  all  the 
navigable  waters  within  the  said  State  shall  be  common-high- 
ways and  forever  free,  as  well  to  the  inhabitants  of  said  State 
as  to  the  citizens  of  the  United  States,  without  any  tax,  im- 
post, or  duty  therefor.’  9 Stat.,  453.  This  declaration  is  sim- 
ilar to  that  contained  in  the  Ordinance  of  1787,  for  the  govern- 
ment of  the  territory  of  the  United  States  northwest  of  the 
Ohio  River,  so  far  as  the  latter  related  to  the  navigable  waters 
flowing  into  the  Mississippi  and  the  St.  Lawrence.  And  in 
Escanaba  Co.  v.  Chicago  we  held,  with  respect  to  the  State  of 
Illinois,  that  the  clause  was  superseded  by  her  admission  into 
the  Union,  for  she  then  became  entitled  to,  and  possessed  of, 
all  the  rights  of  domain  and  sovereignty  which  belonged  to 
the  original  States.  The  language  of  the  resolution  admitting 
her  declared  that  it  was  on  ‘an  equal  footing  with  the  original 
States  in  all  respects  whatever,’  so  that,  after  her  admission, 
she  possessed  the  same  power  over  rivers  within  her  limits  that 
Delaware  exercised  over  Blackbird  Creek  and  Pennsylvania 
over  Schuylkill  River.” 

He  then  refers  to  Pound  v.  Turck,  quoted  above,  and  says : 

‘ ‘ That  clause  is  not,  it  is  true,  commented  on  in  the  opinion, 
but  the  section  containing  it  is  referred  to,  and  the  declara- 
tion that  navigable  streams  within  the  State  are  to  be  com- 
mon highways  must  have  been  in  the  mind  of  the  court.” 

* * * * * 

“The  clause,  therefore,  in  the  Act  admitting  California, 
(j noted  above,  upon  which  the  complainant  relies,  must  be  con- 
sidered, according  to  these  decisions,  as  in  no  way  impairing 
the  power  which  the  State  could  exercise  over  the  subject  if 
tlie  clause  had  no  existence.  But  independently  of  this  con- 


slderat  lon  wo  do  not  think  tlie  ohiiise  itsell'  mini  res  tlio  oon- 
struotion  which  the  eourt  below  placed  upon  it,  and  which 
(‘onnsel  urges  so  earnestly  for  our  consideration.  Tliat  court 
hold  that  tho  clause  contains  two  provisions,  one  that  the  nav- 
igable waters  shall  be  a connnon  highway  to  the  inhabitants 
of  the  State  as  well  as  to  citizens  of  the  United  States;  and 
the  other  that  they  shall  be  forever  free  from  any  tax,  impost 
or  duty  therefor  ; that  these  provisions  are  separate  and  dis- 
tinct, and  that  one  is  not  an  adjunct  or  amplification  of  the 
other.  Possibly  some  support  is  given  to  that  view  by  lan- 
guage used  in  the  opinion  in  Escanaha  Co.  v.  Chicago.  In  that 
case  all  the  bridges  over  the  Chicago  River  had  draivs  for  the 
passage  of  vessels^  and  ive  there  held  that  a bridge  constructed 
with  a draiv  could  not  be  regarded  ivithin  the  Ordinance  of 
1787  as  an  obstruction  to  the  navigation  of  the  stream.  We 
were  not  required  to  express  any  further  opinion  as  to  the 
meaning  of  the  ordinance.  But  upon  the  mature  and  careful 
consideration,  which  we  have  given  in  this  case  to  the  language 
of  the  clause  in  the  act  admitting  California,  we  are  of  opinion 
that,  if  we  treat  the  clause  as  divisible  into  two  provisions, 
they  must  be  construed  together  as  having  but  one  object, 
namely,  to  insure  a highway  equally  open  to  all  without  pref- 
erence to  any,  and  unobstructed  by  duties  or  tolls,  and  thus 
prevent  the  use  of  the  navigable  streams  by  private  parties 
to  the  exclusion  of  the  public,  and  the  exaction  of  any  toll  for 
their  navigation;  and  that  the  clause  contemplated  no  other 
restriction  upon  the  power  of  the  State  in  authorizing  the  con- 
struction of  bridges  over  them  whenever  such  construction 
ivould  promote  the  convenience  of  the  public.  The  Act  admit- 
ting California  declares  that  she  is  ^admitted  into  the  Union 
on  an  equal  footing  with  the  original  States  in  all  respects 
whatever.’  She  was  not,  therefore,  shorn  by  the  clause  as  to 
navigal)le  waters  within  her  limits  of  any  of  the  powers  which 
tlie  original  states  ])ossessed  over  such  waters  within  their 
limits.” 

It  will  he  noted  that  tlie  court,  by  Field,  J.,  here  limits  the  de- 
cision in  the  Escanaba  case  by  the  clause  italicized  above. 

^^We  there  held  that  a bridge  constructed  with  a draw  could 
not  be  regarded  within  the  Ordinance  of  1787  as  an  obstruc- 
tion to  the  navigation  of  the  streams.  We  were  not  required 
to  express  any  further  opinion  as  to  the  meaning  of  the  ordi- 
nance.^^ 

This,  then,  is  what  is  determined  by  the  great  Escanaba  case, 
that  a draw  bridge  does  not  violate  the  ordinance,  this  and  noth- 
ing more. 

Ajid  the  American  Bridge  (knnpany  case  liolds  that  the  naviga- 


lioji  (‘lauso  ill  llio  Act  adinilthig  (^ilit'ornia  did  “insure  a liigliway 
e([ually  open  to  all  without  preference  to  any,  and  unobstructed  by 
duties  or  tolls.”  # * * “And  that  the  clause  contemplated 

no  other  restriction  upon  the  power  of  the  State/m  authorizing  the 
construction  of  bridges  over  them  whenever  such  construction 
would  promote  the  convenience  of  the  public.” 


This,  then,  was  decided  by  the  American  Bridge  Company  case, 
that  the  navigation  clauses  did  insure  a public  highway,  but  did 
not  limit  the  power  of  the  State  to  authorize  a bridge. 


In  the  case  at  bar,  the  State  has  not  authorized  any  bridge  and 
the  State  has  not  authorized  any  dam.  The  Congressional  legis- 
lation does  secure  a public  highway,  and  the  'State  is  here  in  this 
case  trying  to  protect  and  enforce  its  public  highway. 

1885  Van  BrocMin  v.  State  of  Tennessee,  117  U.  S.,  151. 

The  court  here  held  that  property  situated  in  Tennessee  owned 
by  the  United  States  for  the  purpose  of  carrying  on  the  federal 
government,  is  exempt  by  the  constitution  of  the  United  States 
from  State  taxation. 


The  case  is  a noteworthy  rehearsal  of  the  history  of  the  relation 
of  federal  property  to  the  State  governments,  making  quotations 
from  the  early  cases,  and  arguments  from  the  Articles  of  Confed- 
eration and  the  Ordinance  of  1787  and  Acts  admitting  numerous 
States  to  the  Union  and  the  exemption  Acts  of  the  ditfer^^nf  States. 
Incidentally  Mr.  Justice  GtRay  lets  fall  upon  page  159  the  follow- 
ing: 

“In  the  Articles  of  Confederation  of  1778  it  had  been  ex- 
pressly stipulated  that  ‘no  imposition,  duties  or  restriction 
shall  be  laid  by  any  State  on  property  of  the  United  States.’ 
Aud  in  the  articles  which  the  Ordinance  of  1787  for  the  gov- 
ernment of  the  Northwest  Territory  declared  should  ‘be  con- 
sidered as  articles  of  compact  between  the  original  States  and 
the  people  and  States  in  said  Territory,  and  forever  remain 
unalterable,  unless  by  common  consent,’  it  had  been  provided 
that  ‘no  tax  shall  be  imposed  on  lands  the  property  of  the 
United  States.’  Constitutions  and  Charter,  8,  432. 

“The  ^Articles  of  Confederation  ceased  to  exist  upon  the 
adoption  of  the  Federal  Constitution;  and  the  Ordinance  of 
1787,  like  all  acts  of  Congress  for  the  government  of  the  Ter- 
ritories, had  no  force  in  any  State  after  its  admission  into  the 
Union  under  that  constitution.  Permoli  v.  The  First  Munici- 


palUy  of  New  Orleans,  Ilovv.,  (389,  OK);  H trader  v.  Oraham, 
10  liow.,  82.” 

This  was  a mere  remark  by  the  jud^e  in  passing,  and  is  not  in 
any  wise  involved  in  the  case.  It  is  an  attempt  to  make  a con- 
densed statement  of  tlie  Permoli  case  in  3 How.,  and  of  Chief  Jus- 
tice Taney's  decision  in  the  Strader  case  in  10  How.  These  cases 
have  been  fully  explained  heretofore,  and  the  Van  Brocklin  case 
adds  nothing  to  them. 

1886  Hamilton  v.  Vicksburg , Etc.,  Railroad,  119  U.  S.,  280. 

In  this  case  the  court.  Field,  J.,  upheld  the  constitutionality  of 
an  Act  of  Arkansas  authorizing  a bridge  with  a draw  to  protect 
navigation.  He  said : 

‘‘The  line  of  road  crossed  a small  stream,  one  of  the  tribu- 
taries of  the  Ouachita  Biver,  called  Bouff  River,  which  was 
navigable  for  about  six  months  in  the  year.  This  river  has  its 
rise  in  Arkansas,  and  by  its  connection  with  the  Ouachita, 
which  empties  into  Bed  Biver,  its  waters  find  their  way  to  the 
Mississippi.  Over  this  river  the  company  constructed  a bridge 
with  a draw  sufficiently  large  to  allow  the  passage  of  steamers. 
It  was  used  for  years  without  complaint  from  any  one,  so  far 
as  the  record  discloses.  But  in  1880*it  was  found,  upon  inspec- 
tion, to  be  decayed  and  unsafe  for  the  passage  of  trains.  The 
defendant,  which  had  succeeded  to  the  property  and  interests 
of  the  Vicksburg,  Shreveport  and  Texas  Company,  therefore 
determined  to  rebuild  it.  To  carry  out  this  purpose  with  as 
little  inconvenience  as  practicable  to  vessels  navigating  the 
river,  the  company  contracted  with  an  experienced  builder  to 
construct  the  bridge  during  the  summer  months,  when  the 
river  was  usually  too  low  for  navigation.  The  work  could  not 
be  begun  until  the  subsidence  of  the  water  in  July.  In  order 
to  expedite  its  construction,  the  company  stipulated  with  the 
contractor  to  prepare  the  timbers  at  its  workshops  and  trans 
port  them  to  the  ground  as  soon  as  the  state  of  water  would 
permit  the  work  to  be  commenced ; and  it  carried  out  its  stipu- 
lation in  that  respect.  In  the  construction  of  the  new  bridge  it 
became  necessary  to  dismantle  the  draw  of  the  old  one,  and  to 
erect  temporary  supports,  while  the  timbers  and  draw  of  the 
new  bridge  were  being  put  in  place.  To  prevent  the  stoppage 
of  its  trains  while  this  building  was  going  on,  the  company 
constructed  a temporary  bridge  adjoining  the  old  one,  for 
their  transportation,  expecting  to  have  the  new  bridge  com- 
pleted before  the  winter  rise,  which  usually  began  near  the 
close  of  December,  should  render  the  river  navigable.  But, 
early  in  August,  rains  set  in,  and  continued  almost  incessantly 


for  iiioiitlis,  loiiclering-  the  river  naviga])1e  in  Novem})er,  moieli 
earlier  than  usual.  The  work  on  the  new  bridge  was  tlierehy 
greatly  impeded.  To  obviate  this  impediment,  as  far  as  pos- 
sible, tlie  company  added  to  the  contractor’s  force  a gang  of 
its  own  bridge  la])orers,  who  assisted  by  working  at  night  and 
on  Sundays. 

“The  court  below  found  that  tlie  company  did  everything  in 
its  po‘wer  to  accelerate  the  work  on  the  new”  bridge,  but  it  was 
not  completed  until  December  20'tb  following.  The  water  in 
the  river  being  increased  by  the  unusual  rains,  there  was  suf- 
ficient depth  on  the  6th  of  November  to  carry  the  plaintiff’s 
steamer  wdth  freight  above  the  bridge.  But  the  steamer  could 
not  pass  owing  to  the  temporary  structure  and  the  supports 
used  in  the  erection  of  the  new  bridge.  For  the  losses  alleged 
to  have  been  sustained  from  this  obstruction  between  the  6th 
of  November  and  the  20th  of  December  the  plaintiff  brought 
this  action.” 

* * * * * * * 

‘NV  similar  provision  is  found  in  the  acts  admitting  the 
States  of  California,  Wisconsin  and  Illinois 'into  the  Union, 
w"ith  respect  to  the  navigable  rivers  and  waters  in  them,  the 
purport  and  meaning  of  which  have  been  the  subject  of  con- 
sideration by  this  court.” 

^tr.  Justice  Field  now  •reiterated  his  statement  in  the  Cardwell 
case,  that  the  object  of  this  Congressional  legislation  was  in- 
sure a highu'ay  equally  open  to  all  ivithout  preference  to  any,  and 
un oh str acted  hy  duties  or  tolls/’  * * And  that  the. clause 

contemplates  no  other  restriction  upon  the  power  of  the  State  in 
nuthorizing  the  construction  of -bridges  over  them,  whenever  such 
'construction  would  promote  the  convenience  of  the  public.  ’ ’ 

Here  again  the  navigation  clauses,  ^of  the  Acts  of  Congress  are 
■especially  recognized  to  be  in  force,  and  are  especially  recognized 
as  having  the  effect  to  insure  a highway  and  as  constituting  no 
other  restriction  upon  the  power  of  the  State  to  authorize  a bridge. 
This  is  plainly  authority  that  the  legislation  in  question  is  in  force 
here.  - 

1886.  Tluse  v.  Glover,  119  U.  S.,  542. 

This  case  came  up  from  the  U.  S.  Circuit  court.  Northern  Dis- 
trict of  Illinois,  where  it  was  reported  in  11  Bissell,  550.  (s.  c. 

15  Fed.  Kep.,  292.)  It  involves  the  navigation  dams  for  improv- 
ing the  navigation  of  the  Illinois  Biver  at  Henry  and  Copperas 
Creek,  w”hich  w”ere  authorized  by  the  Illinois  Legislature  in  1867. 


A hill  wns  (iUhI  hy  n hnn  (Migaged  in  (uittin^'  ice  at  Peru  and  else- 
wliere  on  the  Illinois  River  and  transi)orting  the  same  by  boats 
on  the  Illinois  and  other  rivers,  to  enjoin  the  Illinois  (yanal  (com- 
missioners from  exacting-  tolls  for  passage  thi-ough  the  dams  at 
Henry  and  (V)pperas  Creek  of  tlieir  ice  boats  and  barges. 

“The  defendants  are  Canal  Commissioners  appointed  in 
})ursuance  of  certain  statutes  of  Illinois,  which  provided, 
among  other  things,  for  the  construction  of  locks  and  dams  on 
the  Illinois  River  at  Henry  and  Copperas  Creek.  The  former 
were  completed  in  1872  and  the  latter  in  1877,  at  an  aggregate 
cost  of  about  $854,739.42,  the  whole  of  which  was  paid  by  this 
State  except  about  the  sum  of  $62,359  paid  hj  the  United 
States. 

‘‘By  the  statutes  referred .lo,  the  Commissioners  were  au- 
thorized to  establish  and  collect  reasonable  tolls  for  the  pass- 
age and  use  of  the  locks  by  boats.  To  that  end  a schedule  was 
adopted,  in  accordance  with  which  complainants  have  been 
required  to  pay  and  have  paid,  always  under  protest,  tolls  for 
the  passage  of  the  locks  by  their  boats,  such  tolls  being  ascer- 
tained as  to  amount,  upon  the  basis  of  the  tonnage  measure- 
ments of  the  boats  and  their  cargoes.” 

Harlan,  d.,  said,  in  deciding  the  case: 

“The  doctrines  of  the  adjudged  cases  sustain  the  authority 
of  this  State — there  being  no  act  of  Congress  forbidding  it — 
to  construct  locks  and  dams  upon  the  Illinois  River.  Her 
. avowed  object  in  so  doing  was  to  improve  the  navigation  of 
that  river  and  effect  a reduction  of  freights  to  the  head  waters 
of  Lake  Michigan  and  to  the  Mississip])i  River.  The  mode  and 
extent  of  such  improvement,  in  the  absence  of  national  legis- 
lation, based  upon  the  power  of  Congress  to  regulate  com- 
merce, was  for  her  determination.  Her  discretion  in  such 
matters,  is  not  to  be  controlled  by  the  courts  so  long  as  Con- 
gress does  not  interfere.  That  locks  and  dams  cause  some 
delay  to,  or  in  some  degree  affect  the  interests  of  those  whose 
business  on  the  Illinois  River  does  not  absolutely  require  the 
use  of  such  instrumentalities,  may  be  conceded.  But  if,  in  the 
judgment  of  the  State,  which  has  jurisdiction  over  all  persons 
and  things  within  its  limits  except  as  restrained  by  the  Na- 
tional Constitution,  the  system  of  locks  and  dams  is  more  ad- 
vantageous to  the  general  x)ublic  than  the  river  in  its  natural 
condition ; if  she  deems  it  important  to  improve  the  navigation 
of  the  Illinois  River,  although  thereby  certain  claisses  engaged 
in  commerce  may  be  subjected  to  inconveniences  which  do  not 
exist  in  the  use  of  the  river  in  its  unimproved  or  natural  con- 
dition,— her  determination  in  the  premises  is  not  to  be  ques- 
tioned by  any  authority  except  Congress. 

“Until  the  National  Legislature  interposes  its  paramount 


authority,  the  State  cannot  be  controlled  by  the  judiciary  as 
to  the  mode  and  extent  of  improving  sucli  navigable  streams 
as  are  wholly  witliin  her  limits. 

‘‘Nor  do  we  perceive  that  the  power  of  the  State  in  this  re- 
spect is  in  any  degree  affected  by  the  ordinance  of  1787,  even 
if  that  ordinance  as  to  the  matters  now  under  consideration  be 
not  su])ersoded  l)y  tlie  constitution  of  the  United  States.” 
* statute  of  Virginia,  authorizing  the  cession  to 

the  United  States  of  the  territory  northwest  of  the  Ohio  River, 
and  in  the  deed  of  cession,  one  of  the  conditions  prescribed 
was  that  the  States  formed  out  of  that  territory  should  be  ad- 
mitted ‘members  of  the  Federal  Union,  having  the  same  rights 
of  sovereignty,  freedom  and  independence  as  the  other  States.’ 
The  ordinance  itself  provided  for  the  admission  of  the  new 
States  ‘on  an  equal  footing  with  the  original  States,  in  all  re- 
spects whatever.’  So  that,  it  seems  to  the  court,  Illinois  has 
as  full  power  and  jurisdiction  over  her  navigable  streams  as 
Virginia  has  over  the  navigable  streams  within  her  limits. 

But  if  her  powers  in  that  respect  are  in  any  degree  affected 
or  controlled  as  to  their  exercise  by  the  ordinance  of  1787,  it 
is  not  perceived  that  the  position  of  complainants  can  be  main- 
tained. The  recognition  of  the  right  of  the  State,  when  un- 
restrained by  Acts  of  Congress,  to  improve  navigable  streams 
within  her  borders  in  such  manner  and  to  such  extent  as  to  her 
seems  conducive  to  the  public  interests,  is  not  necessarily  in- 
consistent with  the  provisions  of  that  ordinance.  Tlie  declara- 
tion therein  that  the  navigable  streams  leading  into  the  Mis- 
sissippi River  shall  be  common  highways,  and  be  forever  free 
to  the  inhabitants  of  the  territory  and  to  the  citizens  of  all 
the  States,  ivas  certainly  not  intended  as  an  inhibition  upon  the 
improvement  of  such  highways  by  the  Federal  Government  or 
by  the  respective  States  formed  out  of  the  Northwest  Terri- 
tory. We  cannot  suppose  that  Virginia  intended,  when  ced- 
ing this  vast  domain,  to  withhold  from  the  future  States  to  be 
erected  therein  that  control  of  navigable  streams  which,  upon 
the  adoption  of  the  constitution,  she  would  have  over  those 
within  her  own  limits. 

“The  utmost,  perhaps,  which  can  be  claimed  is  that  that 
provision  teas  intended  to  secure  the  use  of  such  navigable 
streams  as  highivays  upon  terms  of  equality,  that  is,  ivithout 
discrimination  against  inhabitants  of  that  territory  or  against 
citizens  of  any  of  the  United  States.  Tlie  Illinois  River  is 
none  the  less  a common  highway  because  its  navigability  has 
been  improved  so  as  to  meet  the  wants  of  the  public  in  a larger 
degree  than  it  was  capable  of  doing  in  its  natural  state.  It 
is  still  a common  highway,  for  use  alike  by  all  citizens  of  the 
Imited  States  under  regulations  which  do  not  seem  to  be  in- 
consistent u'ith  the  ordinance  of  1787. 


''  liesidcs,  in  the  opinion  of  the  eonrt,  the  rights  secured  t)y 
the  provisions  of  that  ordinance,  so  far  as  it  relates  to  navi- 
gable streams,  are  in  substance  secured^  by  the  constitutioai  of 
the  United  States.  Oonsequently,  if  that  wliieli  Illinois  has 
done  towards  the  improvement  of  the  llliiiois  River  he  not  for- 
bidden by  the  National  Constitution,  it  is  not  in  eonfhet  with 
the  provisions  of  the  ordinance  of  1787.’’ 

It  will  be  noticed  that  Mr.  Justice  Harlan  here  quotes  witli  some 
reserve  the  general  dictum  of  Chief  Justice  Taney  in  the  Strader 
case. 

He  next  says  that  the  ordinance  does  not  forbid  the  improve- 
ment of  rivers,  nor  the  charge  of  tolls  for  the  improvements,  and 
finally  he  adds  the  new  proposition : 

“The  rights  secured  by  the  provisions  of  that  ordinance,  so 
far  as  it  relates  to  navigable  streams,  are  in  substance  secured 
by  the  Constitution  of  the  United  States.” 

The  ordinance  and  the  early  legislation  of  1791)  and  1804  derive 
further  importance  from  the  fact  that  that  legislation  was  passed 
before  the  invention  of  the  steamboat,  and  secured  the  rights  of 
public  highways  in  rivers  which  irere  navigable  by  the  primitive 
methods  of  navigation  which  prevailed  before  the  steamt)oai  was 
invented. 

This  is  equally  true  of  the  constitution.  It  went  into  effect 
eighteen  years  before  Fulton’s  steamboat  made  its  voyage. 

1887  Sands  v.  Manistee  River  Improvement  Company,  12.4  1^.  S., 
288. 

The  case  is  stated  by  the  court  as  follows: 

“The  ])!aintiff  below  was  a (‘orporation  oi-gmiized  under  a 
statute  of  Michigan  for  the  itnprovement  of  Maiiistee  River,  a 
stream  wholly  within  that  State.  The  present  action  was 
brought  to  collect  from  the  defendant  the  amount  of  tolls  levied 
for  the  use,  in  the  years  1878,  1879,  1880  and  1881,  of  the  rivei* 
as  improved.  The  improvements  consisted  in  the  removal  of 
obstacles  to  the  floating  of  logs  and  lumber  down  the  stream, 
principally  by  cutting  new  channels  at  different  })oints,  and  by 
confining  the  waters  at  other  })oints  by  embankments.  The 
statute,  under  ivhich  the  plaintiff  below  was  organized,  (con- 
tained various  provisions  to  secure  a careful  consideration  of 
the  improvements  proposed,  of  their  alleged  benefit  to  the 
])ublic,  and,  if  adopted,  of  their  ])roper  construction,  and  of 
the  tolls  to  be  charged  for  their  use.  The  company  must  first 
obtain  the  assent  of  the  Governor  and  of  the  Attorney  General 


S-IO 


lo  (lie  proposed  iniprovements,  and  then  submit  to  the  Board 
of  (Umtrol  designated,  a map  of  the  sections  of  the  stream 
which  it  proposed  to  improve,  and  plans  shoiving  the  nature 
and  character  of  the  improvements.  If,  in  the  opinion  of  the 
Boai‘d,  the  eonstruction  of  the  proposed  improvements  would 
he  a public  benefit,  and  the  company  was  a proper  one  to  make 
them,  the  Board  was  required  to  endorse  its  approval  upon  the 
map  and  plans,  give  the  consent  of  the  State  to  their  con- 
struction, and  fix  the  time  for  their  completion.  Upon  such 
approval,  the  corporation  was  authorized  to  make  the  improve- 
ments ; and,  whenever  they  had  been  completed  to  the  satis- 
faction of  the  Board  of  Control,  and  accepted,  that  body  was 
to  fix  the  rates  of  toll  which  the  company  might  charge  for 
running  vessels,  boats,  rafts,  timber,  logs,  or  lumber  through 
the  improved  stream.  These  rates  were  to  he  graduated  with 
reference  to*  the  distance  run  upon  the  river,  and  were  not  to 
l)e  increased  or  changed  without  the  consent  of  the  Board,  and 
could  not  be  increased  at  any  time,  so  that  they  would  amount 
to  more  than  fifteen  per  cent,  of  the  cost  of  the  improvements 
after  deducting  necessary  expenses  and  repairs.  The  collec- 
tion of  tolls  was  to  be  confined  strictly  to  that  part  of  the  river 
improved,  and  to  the  floatable  material  benefited,  by  the  im-^ 
proveinents.  The  streams  improved  under  the  statute  were 
to  be  opened  to  all  persons  for  the  passage  of  vessels,  boats, 
logs,  rafts,  timber  and  lumber,  upon  payment  of  the  prescribed 

tolls;  and  unifonn  rates  were  to  be  charged.” 
******* 

‘ ‘ The  defendant,  however,  contended  and  requested  the  court 

to  instruct  the  jury  in  substance  as  follows : 

* * * * * 

^‘Second.  That  the  statute  in  authorizing  the  improvements 
of  rivers  and  the  collection  of  tolls  for  them  was  in  conflict 
with  the  clause  of  the  Constitution  of  the  United  States  which 
declares  that  no  State  shall  pass  any  law  impairing  the  obli- 
gation of  contracts,  in  that  it  impairs  the  contract  contained 
in  the  ordinance  of  1787.” 

******* 

^^But  the  court  refused  to  give  these  instructions  or  either 
of  them,  and  the  defendant  excepted.  The  jury  found  a ver- 
dict for  the  plaintiff  for  $8,731.88,  upon  which  judgment  was 
entered.  On  appeal,  the  judgment  was  affirmed  by  the  Su- 
preme Court  of  the  State,  53  Mich.,  593,  and  the  case  was 
brought  here  on  writ  of  error.  ^ ’ 

Field,  Judge,  said: 

^‘Iii  authorizing  the  Board  of  Control  to  fix  rates  of  toll 
for  the  floating  of  logs  and  timber  over  the  improved  portions 
of  the  Manistee  Kiver  certain  limits  are  prescribed  to  its 
action;  but  within  those  limits  the  matter  is  left  to  its  judg- 


H41 


iiieiii.  No  iioti(‘e  (*aii  he  ^ivcai  to  particis  who  may  have  o(;ea- 
sion  to  use  tlie  stream  to  attend  Irefore  tlie  Board  and  [)resent 
their  views  upon  the  tolls  to  he  eliarged.  Such  parties  eanuot 
be  known  in  advance.  The  occasion  for  using  tlie  improved 
stream  may  arise  at  any  time  in  the  year;  perhaps  after  the 
tolls  have  been  estahlished.  The  whole  subject  is  one  of  ad- 
ministrative regulation,  in  which  a certain  amount  of  discre- 
tionary autliority  is  necessarily  confided  to  officers  entrnsted 
with  its  execution.  Should  there  be  any  gross  injustice  in  the 
rate  of  tolls  fixed,  it  would  not,  in  our  system  of  government, 
rem.ain  long  nncorrected. 

^^The  Manistee  River  is  wholly  within  the  limits  of  Michi- 
gan. The  Staie^  therefore,  can  authorize  any  improvement 
which  in  its  judgment  tvill  enhance  its  value  as  a means  of 

transportation  from,  one  part  of  the  State  to  another.” 

* * * * * * * 

And  to  meet  the  cost  of  such  improvements,  the  States  may 
levy  a general  tax  or  lay  a toll  upon  all  who  use  the  rivers  and 
harbors  as  improved.  The  improvements  are,  in  that  respect, 
like  wharves  and  docks  constructed  to  facilitate  commerce  in 
loading  and  unloading  vessels.  Huse  v.  Glover,  119  U.  S.,  543, 
548.  Regulations  of  tolls  or  charges  in  such  cases  are  mere 
matters  of  administration  under  the  entire  control  of  the 
State.  ’ ’ 

Having  thus  decided  the  question  before  the  court,  Mr.  Justice 
Fiei  *d  proceeded : 

‘‘There  was  no  contract  in  the  fourth  article  of  the  Ordi- 
nance of  1787  respecting  the  freedom  of  the  navigable  waters 
of  the  territory  northwest  of  the  Ohio  River  emptying  into 
the  St.  Lawrence,  which  bound  the  people  of  the  territory,  or 
of  any  portion  of  it,  when  subsequently  formed  into  a State 
and  admitted  into  the  Union. 

“The  ordinance  of  1787  was  passed  a year  and  some  months 
before  the  Constitution  of  the  United  States  went  into  opera- 
tion. Its  framers,  and  the  Congress  of  the  Confederation 
which  passed  it,  evidently  considered  that  the  jirinciples  and 
declaration  of  rights  and  privileges  expressed  in  its  articles 
would  always  be  of  binding  obligation  upon  the  ])eople  of  the 
territory.  The  ordinance  in  terms  ordains  and  declares  that 
its  articles  ‘shall  be  considered  as  articles  of  compact  between 
the  original  States  and  the  jieople  and  States  in  the  said 
territory,  and  forever  remain  unalterable  unless  by  common 
consent.’  And  for  many  years  after  the  adoption  of  the  con- 
stitution its  provisions  tvere  treated  hy  various  Acts  of  Con- 
gress as  in  force,  except  as  modified  hy  such  acts.  In  some 
of  the  acts  organizing  portions  of  the  territory  under  sepa- 
rate territorial  governments,  it  is  declared  that  the  rights  and 


842 


privileges  granted  by  the  ordinance  are  secured  to  the  inhab- 
itants of  those  territories.  Yet  from  the  very  conditions  on 
which  the  States  formed  out  of  that  territory  were  admitted 
into  the  Union,  the  provisions  of  the  ordinance  became  inoper- 
ative except  as  adopted  by  them.  All  the  States  thus  formed 
were,  in  the  language  of  the  resolutions  or  acts  of  Congress, 
‘admitted  into  the  Union  on  an  equal  footing  with  the  original 
States  in  all  respects  whatever.’  Michigan,  on  her  admission, 
became,  therefore,  entitled  to  and  possessed  of  all  the  rights 
of  sovereignty  and  dominion  which  belonged  to  the  original 
States,  and  could  at  any  time  afterwards  exercise  full  control 
over  its  navigable  waters  except  as  restrained  by  the  Consti- 
tution of  the  United  States  and  laws  of  Congress  passed  in 
-pursuance  thereof.  Permoli  v.  First  Municipality  of  Neiv  Or- 
leans, 3 How.,  589,  600;  Pollard  v.  Hagan,  3 How.,  212;  Esca- 
naha  Co.  v.  Chicago,  107  U.  S.,  678,  688;  Van  Brocklin  v.  Ten- 
nessee, 117  U.  S.,  151,  159;  Huse  v.  Glover,  119  U.  S.,  543, 
546.” 

These  remarks  of  Mr.  Justice  Field  are  an  amplification  of  what 
he  said  in  the  Escanaba  case  and  are  subject  to  the  same  criticism 
which  was  there  made.  Mr.  Justice  Field  realized  that  this  was 
so,  and  accordingly  proceeded  to  hold  that  they  were  really  not 
involved  in  the  case.  He  said : 

‘‘But  independent  of  these  considerations,  there  is  nothing 
in  the  language  of  the  fourth  article  of  the  ordinance  respect- 
ing the  navigable  waters  of  the  territory  emptying  into  the 
St.  Lawrence  which,  if  binding  upon  the  State,  ivoidd  prevent 
it  from  authorizing  the  improvements  made  in  the  navigation 
' of  the  Manistee  River.  As  we  said  in  Huse  v.  Glover,  119  U.  S., 
543,  decided  at  the  last  term,  ‘ The  provision  of  the  clause,  that 
the  navigable  streams  shall  be  highways  without  any  tax,  im- 
post or  duty,  has  reference  to  their  navigation  in  their  natural 
state.  It  did  not  contemplate  that  such  navigation  might  not 
he  improved  hy  artificial  means,  by  the  removal  of  obstruc- 
tions, or  by  the  making  of  dams  for  deepening  the  waters,  or 
by  turning  into  the  rivers  waters  from  other  streams  to  im 
crease  their  depth.  For  outlays  caused  by  such  works  the 
State  may  exact  reasonable  tolls.’  119  U.  S.,  548.  And,  again: 
‘By  the  terms  tax,  impost  and  duty,  mentioned  in  the  Ordi- 
nance, is  meant  a charge  for  the  use  of  the  government,  not 
compensation  for  improvements.’  Ibid.,  549. 

“We  perceive  no  error  in  the  record,  and 

“The  judgment  of  the  Supreme  court  of  Michigan  must  be 
affirmed ; and  it  is  so  ordered.  ’ ’ 

This  places  the  Minnesota  case  on  the  same  footing  as  the 
Bridge  cases.  The  Bridge  cases  say  the  Ordinance  is  not  in  force, 


and  the  legislation  regul-ating  the  river  is  not  in  force,  and  besides 
they  don’t  prohibit  bridges  anyway.  The  Minnesota  case  and  the 
case  of  II use  v.  (Hover,  119  U.  S.,  54*1,  says  the  Ordinance  is  not  in 
force  and  Congressional  Legislation  is  not  in  force,  and  besides  a 
toll  upon  a lawfully  authorized  dam  for  improvement  purposes  is 
not  prohibited  by  the  Ordinance  or  the  legislation  needed.  As  to 
both  the  bridges  and  the  dams,  since  they  do  not  violate  the  Ordi- 
nance or  the  Congressional  Legislation  and  are  specificall}"  held 
not  to  violate  them,  it  follows  that  question  of  whether  the  Ordi- 
nance was  in  force  or  not,  was  not  necessary  to  the  decision  of  the 
cases. 

The  decision  of  Harlan,  J.,  11  Bissell,  was  affirmed  in  119  U.  S., 
544.  Mr.  Justice  Field  repeated  his  holdings  in  the  Eiscanaba 
case,  both  that  one  which  followed  the  dictum  of  Taney,  C.  J.. 
and  said  that  the  Ordinance  ‘‘ceased  to  have  any  operative  force 
except  as  voluntarily  adopted  by  her  after  she  became  a State 
of  the  Union,”  and  also  the  following: 

“We  also  held,  in  that  case,  that,  independently  of  these 
considerations,  the  terms  of  the  ordinance  were  not  violated 
because  the  navigable  streams  were  subject  to  such  crossings 
as  the  public  necessities  and  convenience  might  require.  The 
rivers  did  not  change  their  character  as  common  highways,  if 
the  crossings  were  allowed  under  reasonable  conditions,  and 
so  as  not  unnecessarily  to  obstruct  them.  The  erection  of 
bridges  with  dams,  and  the  establishment  of  ferries  for  the 
transit  of  persons  and  property,  are  consistent  with  the  free 
navigation  of  the  rivers.” 

* * * * # * 

“A  similar  clause  as  to  their  navigable  rivers  is  found  in 
the  acts  providing  for  the  admission  of  California,  Wisconsin 
and  Louisiana.  The  clause  in  the  act  providing  for  the  ad- 
mission of  California  was  considered  in  Cardivell  v.  Amerienn 
Bridge  Compamj,  113  U.  S.,  205.  We  there  held  that  it  did 
not  impair  the  power  which  the  State  could  have  exercised 
over  its  rivers  had  the  clause  not  existed;  and  that  its  object 
was  to  preserve  the  rivers  as  highways  equally  open  to  all 
persons  without  preference  to  any,  and  unobstructed  by  duties 
or  tolls,  and  thus  prevent  the  use  of  the  navigable  streams  by 
private  parties  to  the  exclusion  of  the  public,  and  the  exaction 
of  toll  for  their  navigation.  The  same  doctrine  we  have  reit- 
erated at  the  present  term  of  the  court  in  construing  a sim- 
ilar clause  in  the  act  for  the  admission  of  Louisiana.  Hamil- 
ton V.  Vicksburg,  Shreveport  & Pacific  Railroad,  ante,  280.  As 
thus  construed  the  clause  would  prevent  any  exclusive  use  of 


844 


the  navigable  waters  of  tlie  'State — a possible  farming  out  of 
the  privilege  of  navigating  them  to  particular  individuals, 
(‘lasses  or  c.ori)orations,  or  hy  vessels  of  a particular  charac- 
ter. That  the  apprehension  of  such  a monopoly  was  not  un- 
founded is  evident  from  the  history  of  legislation  since.  The 
State  of  New  York  at  one  time  endeavoreci  to  confer  upon  Liv- 
ingston and  Fulton  the  exclusive  right  to  navigate  the  waters 
within  its  jurisdiction  by  vessels  propelled  in  whole  or  in  part 
by  steam. 

‘‘The  exaction  of  tolls  for  passage  through  the  lociks  is  as 
compensation  for  the  use  of  artificial  facilities  constructed, 
not  as  an  impost  upon  the  navigation  of  the  stream.  The  pro- 
vision of  the  clause  that  the  navigable  streams  should  be  high- 
ways without  any  tax,  impost  or  duty,  has  reference  to  their 
navigation  in  their  natural  state.  It  did  not  contemplate  that 
such  navigation  might  not  he  improved  hg  artificial  means, J)tj 
the  removal  of  obstructions,  or  hy  the  making  of  darns  for 
deepening  the  ivaters,  or  hy  turning  into  the  rivers  waters 
from  other  streams  to  increase  their  depth.  For  outlays 
caused  hy  such  tvorks  the  State  may  exact  reasonable  tolls, 
They  are  like  charges  for  the  use  of  wharves  and  docks  con- 
structed to  facilitate  the  landing  of  persons  and  freight,  and 
the  taking  them  on  board,  or  for  the  repair  of  vessels.’’ 

1892  Monongahela  Nav.  Co.  v.  U.  S.,  148  U.  S.,  312. 

That  was  a case  of  eminent  domain,  by  which  under  the  river 
and  harbor  act  of  August  11,  1888,  the  United  States  Government 
condemned  and  acquired  the  locks  and  dams  of  the  Monongahela 
Navigation  Company.  The  court  upheld  the  river  and  harbor  act, 
the  validity  of  which  was  challenged,  and  incidentally  rehearsed 
several  of  the  holdings  heretofore  cited  as  to  the  rights  of  a State 
to  authorize  the  erection  of  such  locks,  dams,  and  their  existence 
as  lawful  property  when  constructed  under  such  authorization. 

1893  Shively  v.  Boivlhy,  152  U.  S.,  1,  at  26,  33,  34. 

This  most  interesting  case  arose  on  a bill  to  quiet  the  title  to 
lands  below  high  water  mark  in  the  City  of  Astoria  along  the  Co- 
lumbia Eiver.  Without  going  into  any  question  of  title  or  defini- 
tion of  navigable  streams,  we  notice  the  case  here  because  Mr. 
Justice  Gray,  in  the  great  wealth  of  citation  with  which  his  opinion 
is  enriched,  cites  the  Ordinance  on  page  26,  and  most  of  the  pre- 
ceding cases  referring  to  it,  and  on  pages  33  and  34  says : 

“By  the  ordinance  of  1787  for  the  government  of  the  North- 
west Territory,  ‘the  navigable  waters  leading  into  the  Missis- 
sippi and  8t.  Lawrence,  and  the  carrying  places  ])etween  the 


same,  shall  be  common  highways,  and  forever  free,  as  well  to 
the  inhabitants  of  the  said  Teri-itory  as  to  the  citizens  of  tli(i 
United  States,  and  those  of  any  other  States  that  may  be  ad- 
mitted into  the  Confederacy.’  Charters  and  Constitutions, 
4o2;  act  of  August  7,  1789,  c.  8;  1 Stat.,  50.  And  the  acts  re- 
lating to  the  Territories  of  Louisiana  and  Missouri  co*ntained 
similar  provisions.  Acts  of  March  3,  1811,  c.  46,  sec.  12;  June 
4,  1812,  c.  95,  sec.  15 ; 2 Stat.,  666,  747. 

^ ‘In  the  acts  for  the  admission  of  the  States  of  Louisiana  and 
Mississippi  into  the  Union,  it  was  likewise  declared  that  ‘the 
Kiver  Mississippi  and  the  navigable  rivers  and  waters  leading 
into  the  same,  or  into  the  Grulf  of  Mexico,  shall  be  common 
highways,  and  forever  free,  as  well  to  the  inhabitants  of  the 
said  State  as  to  other  citizens  of  the  United  States.’  Acts  of 
Februarv  20,  1811,  c.  21,  sec.  3;  April  8,  1812,  c.  50,  sec.  1;  2 
Stat.,  642,  703;  March  1,  1817  c.  23  sec.  4;  3 Stat.,  349. 

“In  Withers  v.  Buckley  (1857),  20  How.,  84,  this  court,  af- 
firming the  judgment  of  the  highest  court  of  Mississippi  in  29 
Mississippi,  21,  held  that  this  did  not  prevent  the  Legislature 
of  the  State  from  improving  by  a canal  the  navigation  of  one 
of  those  navigable  rivers,  and  thereby  diverting  without  com- 
pensation the  flow  of  water  by  the  plaintiff’s  land;  and  Mr. 
Justice  Daniel,  in  delivering  judgment,  said:  ‘It  cannot  be 
imputed  to  Congress  that  they  ever  designed  to  forbid,  or  to 
withhold  from  the  State  of  Mississippi,  the  power  of  improv- 
ing the  interior  of  that  State,  by  means  either  of  roads  or 
canals,  or  by  regulating  the  rivers  within  its  territorial  limits, 
although  a plan  of  improvement  to  be  adopted  might  embrace 
or  affect  the  course  or  the  flow  of  rivers  situated  within  the 
interior  of  the  State.  Could  such  an  intention  be  ascribed  to 
Congress,  the  right  to  enforce  it  may  be  confidently  denied. 
Clearly,  Congress  could  exact  of  the  new  State  the  surrender 
of  no  attribute  inherent  in  her  character  as  a sovereign  inde- 
pendent State,  or  indispensable  to  her  equality  with  her  sis- 
ter States,  necessarily  implied  and  guaranteed  by  the  very  na- 
ture of  the  Federal  compact.  Obviously,  and  it  may  be  said 
])rimarily,  among  the  incidents  of  that  equality  is  the  right  to 
make  improvements  in  the  rivers,  watercourses  and  highways, 
situated  within  the  State.’  20  How.,  93.  See  also  Willam- 
ette Bridge  Co.  v.  Hatch,  125  U.  S.,  1,  9-12 ; Monongahela  Co. 
V.  United  States,  148  U.  S.,  312,  329-333.” 

1905  Maoiigault  v.  Springs,  199  U.  S.,  473. 

The  court  here  held  that  in  the  absence  of  legislation  by  Con- 
gress, a State  has  full  i>ower  to  improve  its  land  and  promote  the 
general  health  by  authorizing  dams  across  interior  streams,  though 
previously  navigable  to  the  sea. 


A hill  had  l)eeii  filed  by  the  appeilant  to  enjoin  the  damming  of 
Kinlocli  (h'eek  by  tlie  defendant  under  a statute  authorizing  the 
same.  A demurrer  to  the  hill  was'  sustained  and  the  hill  suhse- 
([ueiitly  dismissed.  123  Fed.  Hej).,  700.  The  case  rehearsed  the 
doctrine  of  the  American  Bridge  Company,  113  U.  S. ; The  Fsca- 
naha  Co.,  107  U.  '8.;  the  Willamette  Bridge  Co.,  125  U.  S.,  and  the 
other  cases  heretofore  noted.  It  is  a reiteration  of  the  doctrine 
that  the  right  of  navigation  and  the  right  of  bridging  are  of  equal 
dignity  and  value. 

We  have  now  examined  all  of  the  federal  cases.  It  develops 
that  no  one  of  them  necessarily  involves  any  decision  detracting 
from  the  force  of  Congressional  Legislation  re-enacting  the  navi- 
gation clause  of  the  Ordinance  of  1787 ; that  several  of  them  do  by 
dicta  say  that  the  ordinance  is  not  in  force,  but  most  of  th^se  same 
cases  add  that  the  ordinance  as  re-enacted  hy  the  acts  admitting 
the  States  then  in  question  and  providing  for  the  sales  of  public 
land  is  still  in  force  and  is  a valid  regulation  of  interstate  com- 
merce, and  that  that  clause  as  so  re-enacted  does  secure  the  exist- 
ence of  the  highivay  ivhich  existed  at  the  time  of  its  enactment, 
and  protect  it  against  monopoly  or  discrimination. 

Most  of  the  cases  arise  upon  bridges  or  dams  and  locks  lawfully 
placed  by  State  Legislation  and  such  State  Legislation  is  upheld. 
The  bridges  do  not  violate  either  the  original  ordinance  or  its  re- 
enactment in  Congressional  Legislation.  Neither  do  dams  and 

booms  and  locks,  lawfully  authorized  by  State  Legislation. 

* 

If  now  the  defendant  had  secured  a statute  from  the  State  of 
Illinois  authorizing  it  to  construct  this  dam,  then  these  cases 
would  be  authority  for  the  lawfulness  of  such  dam. 

But  the  defendant  has  obtained  no  such  Legislative  authority. 

The  defendant  is  proceeding  without  any  Legislative  authority 
or  Executive  authority  from  the  State. 

These  eases  are  thus  clear  authority  that  the  act  of  the  defend- 
ant is  without  right. 

The  cases  further  show  that  in  the  absence  of  some  special  Con- 
gressional Legislation,  an  authority  to  erect  structures  in  such 
streams  as  were  legislated  on  by  Congress  in  1790  and  1804,  that 


847 


is,  the  Dos  l^lainos  and  Illinois  Rivers,  must  bo  obtained  fr()^H.  the 

State. 

THE  ORDINANCE  OF  1787  IS  HELD  BINDING  IN  THE  OTHER  STATKS  CARVED 
OUT  OF  THE  NORTHWEST  TERRITORY. 

Ohio. 

1831.  Hog()  V.  Zanesville  Canal  dc.  Co.,  5 Oliio,  410.  Muskingum 
River,  held  navigable  and  iprotected  by  the  ordinance. 

‘‘Hitchcock,  J.  : This  portion  of  the  ordinance  of  1787  is 
as  much  obligatory  upon  the  State  of  Ohio  as  our  own  con- 
stitution. In  truth,  it  is  more  so,  for  the  constitution  may  be 
changed  by  the  people  of  the  State,  while  this  cannot  be  altered 
without  the  assent  both  of  the  people  of  this  State  and  of  the 
United  States,  through  their  representatives.  It  is  an  article 
of  compact,  and  until  we  assume  the  principle  that  the  sover- 
eign power  of  the  State  is  not  bound  by  compact,  this  clause 
must  be  considered  obligatory.  ’ ’ 

Michigan. 

1853  Moore  v.  Sanborn,  2 Mich.,  519-20.  Pine  River,  Michigan 
(a  small  stream  emptying  into  the  St.  Clair),  held  navi- 
gable and  protected  by  the  ordinance.  The  court  below 
ruled : 

“I  shall  rule  that  Pine  River  up  to  that  point  where  you 
may  find  the  parties  cut  and  put  into  it,  and  from  which  point 
logs  are  run  to  market,  or  to  the  mouth  of  the  river,  is  a pub- 
lic highway,  in  tvhich  the  whole  public  have  an  easement.** 

The  court  above  said : 

“The  ordinance  of  1787  would  supersede  this  doctrine  of  the 
necessity  of  usage  or  custom,  to  establish  a public  right  over 
our  rivers,  even  were  such  the  established  rule  of  the  common 
law.  It  declares  that  the  navigable  waters  flowing  into  the 
Mississippi  and  St.  Lawrence  shall  be  common  highways  and 
forever  free.  It  was  framed  without  regard  to  the  common 
law  rule  as  to  what  constituted  navigable  waters,  and  was  de 
signed  to  extend  over  all  streams  which  were  capable  of  being 
used  for  any  purpose  of  public  utility.  This  ordinance,  it  will 
be  remembered,  was  established  long  before  any  considerable 
settlement  of  the  territory  over  which  its  provisions  were  to 
extend,  and  it  was  intended  to  provide  for  future  contingencies 
rather  than  for  immediate  application — was,  in  fact,  the  dec- 
laration of  a perpetual  reservation  of  rights  to  the  public,  sub- 
ordinate to  which,  individual  rights  should  be  acquired.  ” 


848 


‘NMviga])le  waters,’  as  used  in  ordinance  1787,  ])roviding 
that  tlie  navigable  waters  leading  into  the  Mississippi  and  St. 
Ijawrence,  and  the  carrying  places  between  them,  shall  be  com- 
mon highways  and  forever  free,  does  not  include  every  little 
rill  or  brook  whose  waters  finally  reach  these  great  highways. 
Tt  was  intended  to,  and  did,  apply  only  to  such  streams  as  were 
then  common  highways  for  canoes  or  bateaux  in  the  commerce 
between  the  northwest  ivilderness  and  the  settled  portions  of 
the  United  States  and  foreign  countries,  and  as  to  such  rivers 
not  then  in  use  as  would  by  law  be  embraced  in  the  definition  of 
navigable  waters.” 

Burrough  v.  Whitman,  59  Mich.,  279;  26  N.  W.,  491,  492. 

Indiana. 

'898  State  v.  Wahash  Paper  Co.,  51  N.  E.,  949.  Wahash  River 
held  navigable  and  protected  by  the  ordinance. 

Wiley,  J. : ^ Again,  if  the  Wabash  River  is  a 

navigable  stream,  then,  under  the  authorities,  it  is  a public 
highway,  and  a public  highway  is  a public  place.  By  the  act 
of  March  26,  1804,  Par.  6 (2  Stat.,  279),  it  was  provided  by 
Congress  that  ^all  navigable  rivers,  creeks  and  wmters  within 
the  Indiana  Territory  shall  be  deemed  to  be  and  remain  pub- 
lic highways.’  It  must  follow  from  this  act  of  Congress  that 
so  much  of  the  Wabash  River  as  was  in  fact  navigable  in  1804 
must  be  held  navigable  now,  and  to  remain  a ^public  highway.’ 
In  the  "Western  Gazeteer  for  1817  (page  39),  the  Wabash 
River  was  said  to  be  navigable  for  keel  boats  for  400  miles 
'from  its  mouth;  and  at  page  73  it  was  said  that  it  was  navi- 
gable for  470  miles.  In  1819  there  was  a reprint  of  the  Gazet- 
teer in  Ireland,  and  at  pages  40  and  75  the  same  statements 
are  made.  In  the  Indiana  Gazeteer,  published  in  Indianapolis 
in  1850,  at  page  21,  it  was  stated  that  the  Wabash  River  was 
navigable  for  450  miles.  In  article  4 of  the  ordinance  of  1787 
(Rev.  St.,  1881,  p.  1430)  it  is  provided : ‘ The  navigable  waters 
leading  into  the  Mississippi  and  Saint  Lawrence  and  the  car- 
rying places  between  the  same  shall  be  common  highways  and 
forever  free,  as  well  to  the  inhabitants  of  the  said  territory  as 
to  the  citizens  of  the  United  States  and  those  of  any  other 
State  that  may  be  admitted  into  the  Confederacy.’  It  is  a 
matter  of  public  history  that  the  Wabash  River  was  used  as  a 
public  highway  between  its  mouth  at  the  Ohio  River  and  the 
portage  somewhere  between  Huntington  and  Ft.  A¥ayne  for 
many  years  prior  to  the  time  when  George  Rogers  Clark  drove 
the  British  from  Ft.  Vincennes  by  this  route  up  into  Canada, 
February  25,  1778.  In  the  case  of  Depew  v.  Board,  5 Ind.,  8, 
the  Supreme  court  held  that  the  ordinance  above  cited  has  been 


849 


a(lo})t(H]  niid  i*ecog‘iiizod  by  Congress,  and  is  a valid  and  sul)- 
sisting  law  of  the  United  States.  See  also  Neaderkouscr  v. 
Sf(ff(',  :28  Ind.,  2()();  (^ooley,  (\)nst.  Law,  ]).  20.  January  2J, 
1829,  the  Ijegislature  passed  an  act  entitled  ‘An  Acd  relatives 
to  navigable  streams  declared  highways  by  the  ordinance  of 
(\)ngress  of  1787.’  Acts  1829,  p.  79.  It  was  there  provided: 
‘ Uvery  person  or  persons  who  shall  erect  or  keep,  or  who  have 
erected  and  shall  continue  to  keep,  any  mill  dam  or  other  arti- 
ficial obstriudion  across  the  bed  or  channel  of  any  stream  or 
river  which  is  navigable,  and  the  bed  or  channel  of  which  has 
]iot  been  surveyed  and  sold  as  land  by  the  United  States,  shall, 
upon  conviction  by  indictment,  be  fined  in  any  sum  not  less 
than  $3  nor  more  than  $500  for  every  week  when  such  ob- 
struction may  be  kept  and  continued.  ’ Even  as  late  as  1850  the 
Legislature  passed  an  act  authorizing  William  MoDowell,  of 
Adams  County,  to  erect  a milldam  across  Wabash  Kiver,  in 
said  county.  Local  Laws  1850,  p.  175.  This  act  provided 
that  said  dam  was  ‘not  to  exceed  six  feet  in  height,  with  suit- 
able slope  or  lock  so  as  not  to  interrupt  the  navigation  of  said 
river,  when  the  river  is  in  the  proper  state  for  the  same.’  In 
Dmvson  v.  James,  64  Ind.,  162,  it  was  held  that  the  W^abash 
Liver  was  a navigable  stream,  the  bed  of  which  had  never 
been  surveyed  or  sold.  Courts  take  judicial  knowledge  of  the 
geograxJiy  of  the  country,  and  hence  judicially  know  tliat  Wa- 
hash  and  Miami  counties  are  less  than  400  miles  distant  from 
the  month  of  the  Wabash  Liver.  We  also  judicially  know  that 
the  cities  of  Wabash  and  Peru,  and  other  towns  in  said  coun- 
ties, are  situated  on  the  banks  of  such  river.” 

Wisconsin. 

Attorney  General  v.  The  City  of  Eau  Claire,  and  Others,  37  Wis., 
p.  400. 

That  was  a case  where  the  Legislature  of  Wisconsin  l)y  the  ad 
of  1875  had  assumed  to  authorize  the  City  of  Eau  Claire  to  build 
a dam  across  the  Chippewa  Liver,  within  the  limits  of  the  city,  to 
construct  ivater  ivorks;  to  establish  water  rents  and  ])rovide  for 
the  collection  thereof.  It  required  the  city  to  construct  booms  and 
piers  in  the  slack  water  time  for  protecting  the  navigation  of  the 
river,  and  for  sorting  and  sawing  up  the  logs. 

It  authorized  the  city  to  lease  the  water  power  of  the  dam  for 
manufacturing  purposes  except  so  much  as  might  be  needed  by  the 
city  for  hydraulic  purposes,  and  to  lease  the  piers  and  booms,  and 
fix  the  rate  of  booming  and  storage. 

Section  4 re(iuired  tbe  dam  to  be  constructed  with  a lock  for 


850 


sl(‘ainl)()ats,  and  a chute  for  logs  and  lumber,  and  the  act  required 
an  (he(‘tiou  to  acce})t  the  work,  and  in  the  case  of  such  acceptance, 
authorized  the  issue  of  bonds  by  the  city  in  aid  of  the  work  and 
pi'ovided  for  their  ]>aynient  out  of  the  revenue  of  the  work  and  a 
tax  to  supply  all  deficiencies. 

On  the  information  by  the  Attorney  General,  the  court  held  that 
these  several  powers  were  distinct  and  independent  powers,  and 
that  the  power  to  erect  and  maintain  the  dam  not  being  dependent 
upon  any  public  use,  the  city  took  no  authority  under  the  act  to 
build  a dam  across  the  river  or  to  borrow  any  money  or  to  levy 
any  taxes. 

The  Court  then  says  (Kyan,  C.  J.)  : 

‘AYe  have  already  intimated  that  we  are  indis})osed  to  ex- 
tend the  original  jurisprudence  of  this  court  to  cases  of  en 
croachment  on  local  highways.  As  Stow,  C.  J.,  says,  it  is  dif- 
ficult, in  considering  such  things,  to  conceive  what  is  not  local 
in  some  sense.  But  in  considering  what  is  or  what  is  not  local 
for  the  purpose  of  jurisdiction,  we  should  surely  distinguish 
between  a thoroughfare  by  railroad,  of  common  interest  to  all, 
and  an  alley  in  some  municipality  known  of  few  only.  And 
there  may  be  highways  by  water,  local  in  this  sense.  But 
navigable  waters  leading  into  the  Mississippi  and  St.  Lawrence 
constitute  a peculiar  class  of  highways,  which  cannot  be  con- 
sidered local  for  jurisdiction.  They  are  not  merely  highways. 
They  are  a trust  from  the  federal  government  to  the  state,  ac- 
cepted by  the  state,  which  the  state  is  bound  to  keep  as  com 
mon  highways  forever  free  to  the  people  of  the  state  and  of 
the  United  States.  Ordinance  of  1787,  Art.  .IV;  Act  of  Con- 
gress, April  20,  1836,  Sec.  12;  Act  of  Congress,  August  6,  1846, 
Sec.  3;  Const.,  Art.  IX,  Sec.  1;  Pollard  v.  Hagan,  2 Howard, 
312;  W.  R.  I.  Co.  V.  Lijom,  30  Wis.,  61. 

‘AVhat  are  properly  local  highways  in  the  sense  we  have 
been  considering,  are  generally  within  the  limits  of  one  munici- 
pality, existing  under  its  authority,  in  charge  of  its  officers. 
These  may  generally  be  left  in  the  protection  of  local  authori- 
ties, and  local  jurisdictions.  Public  rivers  are  highways  by 
no  local  authority  and  are  rarely,  if  ever,  within  a single 
municipality  or  in  charge  of  its  officers.  They  are  in  charge 
of  the  state,  and  the  state  cannot  abdicate  its  charge  of  them. 
That  cliarge  is  a duty  to  the  federal  government,  and  a trust 
for  the  whole  people,  not  of  the  state  only,  but  of  the  several 
states.  An  unauthorized  encroachment  upon  any  of  them  is  a 
violation  of  the  duty  assumed  by  the  state,  in  its  aggregate 
and  sovereign  character,  to  keep  them  forever  open.  Every 
such  encroachment  is  a pourpresture,  which  concerns  the  sov- 


h:)\ 


oroi^ii  prerogjitivo  of  the  slate,  and  the  pi'er'o^ati v(*  jiirisdi(‘- 
tion  ot*  this  eoiirt.  Original  jurisdiction  of  such  (aises  h(n*e  is 
too  nianifest  for  disciisison. 

“ddie  (|nestion  does  not  arise  what  works  tlie  legislature  ('an, 
under  the  (‘onstitution, 'authorize  in  or  over  navigable  waters. 
Neither  does  the  (jiiestion  wlietlier,  under  a valid  statutory 
power,  providing  against  material  obstruction,  an  injunction 
could  properly  go  against  the  work  autborized  upon  a mere 
averment  in  advance  that  it  would  unlawfully  obstruct  navi- 
gation. Because  the  statute  of  1875,  in  our  view,  is  inopera- 
tive either  to  give  any  power  or  to  impose  any  restriction 
upon  the  city  in  relation  to  the  dam  in  question.  In  our  view 
of  tlm  statute,  if  the  city  should  proceed  with  the  work,  it 
would  dam  a public  river  within  tiie  constitutional  protec- 
tion, without  any  statutory  authority  or  statutory  limitation. 
If  the  city  do  not  take  the  power,  it  is  not  bound  by  the  con- 
ditions of  the  powder.  It  would  act  outside  of  the  power,  and 
without  power.  We  must  consider  the  proceedings  as  if  Gh. 
333  of  1875  had  not  been  passed.  And  it  is  impossible  not  to 
regard  an  undertaiking  to  huikl  the  dam  as  an  nnlaicfnl  attempt 
to  ohstrurt  the  navigation  of  the  river. 

‘‘The  actual  navigation  may  he  little,  and  the  obstruct  ion 
might  he  slight.  So  the  affidavits  tend  to  show.  But  neither 
the  right  nor  the  rvrong  is  a question  of  degree.  We  cannot 
listen  to  one  about  to  put  an  unlawful  work  in  a ])uhlic  river, 
that  it  will  not  materially  obstruct  navigation.  If  the  obstruc- 
tion he  undertaken,  without  valid  authority,  it  is  our  duty,  in 
a proper  case,  without  counting  convenience  or  inconvenience, 
to  interpose  the  prerogative  writ  of  the  state  to  secure  the  pre! 
rogative  right  of  the  state  from  infringement. 

‘‘And  it  is  proper  to  say  here  that,  if  the  court  take  juris- 
diction of  the  information  on  this  ground,  it  tvill  not  ignore 
the  other  branch  of  the  case,  although  that  was  insufficient  to 
give  jurisdiction.  The  general  rule  is  familiar,  that  a court 
of  equity,  when  it  has  taken  jurisdiction  of  a matter  for  one 
purpose,  will  give  the  remedies  ])roper  to  it  for  all  purposes.” 

A ttorney  (teneral  v.  City  of  Eau  Claire,  40th  VVis..  }).  533. 

“We  held  in  the  former  (uise.  Attorney  General  v.  Eau 
Claire,  37  Wis.,  400,  that  the  statute  then  before  us,  (3i.  333 
of  1875,  authorized  the  erection  of  a dam  at  public  (mst  across 
a navigable  river,  either  for  the  ])urpose  of  water  works  for  the 
city,  or  for  the  purpose  of  leasing  the  water  power  for  private 
purposes;  and  that  so  the  power  was  alternative  and  optional, 
either  for  a public  or  a private  use,  and  therefore  void. 

“Since  that  decision,  and  o])viously  in  view  of  it,  the  legisla- 
lature  has  amended  the  statute  of  1875  by  Ch.  231  of  ISIO. 
And  the  amendment  so  clearly  and  emphatically  makes  the 
power  to  construct  the  dam  dependent  on  the  power  to  con- 


struct  n'dicr  n'orks^  and  limits  tlie  x)ower  to  lease  the  water 
power  to  the  excess  not  required  for  the  water  works,  as  to 
])lace  the  power  beyond  criticism  in  that  respect. 

“The  averment  is  therefore  directed,  not  against  the  execu- 
tion of  the  power  by  the  authorities  of  the  city,  hut  against 
the  power  itself  as  granted  by  the  lepslature.  We  did  not 
understand  counsel  as  seriously  questioning  the  right  of  the 
legislature  to  authorize  the  erection  of  a dam,  on  a navigable 
river*,  not  materially  obstructing  navigation,  for  a public  pur- 
pose other  than  the  improvement  of  the  navigation.  (Citing 
authorities).  We  therefore  need  not  consider  that  question.’’ 

iNriXNhkSOTA  (1852).  (That  portion  of  Minnesota  east  of  the 
Mississippi  was  part  of  the  Northwest  Territory  governed  by 
the  ordinance.) 

Castner  v.  Steamboat  Dr,  Franklin,  1 Minn.,  73. 

[Mississippi  held  navigable — ^Steamboat  plying  therein  and  in 
slough  thereof,  held  liable  in  attachment  for  damages  to  a 
raft  boomed  in  slough. 

Case  gives  peculiar  discussion  of  Ordinance  of  1787 ; says  it  was 
confined  to  waters  leading  into'  Mississippi  and  St.  Lawrence,  and 
did  not  apply  to  those  two  rivers  themselves ; and  owing  to  foreign 
control  (Spain  commanded  the  mouth  of  the  Mississippi) — so  that 
the  United  States  had  no  authority  by  a “new  declaratory  act  to 
impart  to  those  rivers  any  such  quality  or  any  higher  or  lower 
one.”  The  court  (Meeker,  J.)  further  says  (pp.  77-8): 

“But  we  think  the  language  of  the  ordinance  is  not  suscept- 
ible of  such  a construction,  and  as  already  stated,  does  not 
embrace  the  Mississippi.  Does  then  the  common  law  apply 
arbitrarily  in  reference  to  this  subject,  and  are  we  to  be  bound 
by  it  in  the  decision  of  this  case?  Or  shall  we  assume  that, 
owing  to  the  conceded  navigability  of  the  Mississippi,  and  the 
palpable  absurdity  of  considering  it  a private  stream,  that  in 
this  respect  the  common  law  is  not  applicable  to  our  local  situa- 
tion? This  has  been  the  course  of  the  Supreme  Courts  of  the 
States  of  Pennsylvania  and  South  Carolina,  and  perhaps  some 
others.  See  Carson  v.  Blazer,  2 Bin.  Bep.,  475;  SJiunk  v. 
Schuylkill  Navigation  Co.,  14  S.  & Rawle,  p.  71;  Cates  v. 
Waddington,  1 McCord  Eep.,  580.  See  also  3 Devereux  (N.  C.) 
Rep.,  79.  From  the  view,  however,  we  have  taken  of  the  law 
in  this  case,  we  have  not  deemed  it  necesasry  to  declare  judici- 
ally, that  the  in’inciple  of  the  common  law  we  have  been  dis- 
cussing is  not  applicable  to  our  situation. 

“M^e  think  from  the  policy  of  our  Government,  evinced  in 


Ilie  administration  ot'  its  public  land  system,  and  the  re[)eated 
lei^'islativo  I’ecognitions  thereof,  the  national  legislature  lias 
(‘learly  enough  controlled  and  limited  the  common  law  in  re- 
gard to  this  subject.  In  tlie  disposition  of  tlie  public  domain  it 
has  from  the  beginning  reserved  the  Mississippi  and  tlie  soil 
it  flows  over  from  its  surveys  and  grants.  The  surveyors  in 
its  employ  have  always  hounded  their  plats  by  the  meander- 
ings  of  its  hanks,  and  its  patents  liave  been  issued  to  in- 
dividuals only  to  the  same  extent.  It  is  obvious  that  what  has 
not  been  so  let  to  and  vested  in  individuals,  still  remains  in  the 
Grovernment,  for  the  use  of  the  public  which  that  Government 
rei3reseiits.  The  conclusion,  then,  we  have  come  to  is,  that 
the  Mississippi  is  in  law,  as  in  fact,  a navigable  river — and 
that  all  navigators  and  craftsmen  of  whatever  description 
thereon,  enjoy  the  same  rights  and  are  entitled  to  the  same 
exemptions,  that  they  would  have  had  on  rivers  navigable  at 
common  law,  among^  which  is  the  right  to  land  freight  and 
passengers  and  to  receive  the  same  on  its  banks,  and  this 
privilege  extends  to  high  water  mark.” 


XII. 


NO  PERMIT  01^  APPROVAL  OF  THIS  PROPOSED  DAM  WAS  EVER  GRANTED  BY 
EITHER  STATE  OR  FEDERAL  GOVERNMENT. 

IT  VIOLATES  THE  ACT  OF  CONGRESS  OF  MARCH  3,  1899,  REQUIRING  SUCH 

PERMIT  AND  APPROVAL. 

(30  U.  S.  Stat.  at  L.,  1157;  3 U.  8.  Gomp.  St.,  p.  3510.) 

Tlie  AVar  Department  declined  to  give  any  ])ermit  therefor. 
Letter  of  Acting  Secretary  of  AVar  (Abst.,  ]).  1301.) 
Testimony  of  Gen.  McKenzie,  Chief  of  U.  S.  Engineers 
(Abst./pi).  175,  280.) 


DIVISION  FOUR 


DIVISION  FOUR. 


Errors  p^y  the  Trtal  (\)tjrt. 


ERRORS  TN  THE  DECREE. 

Our  discussion  of  the  merits  has  left  us  no  space  for  a review  of 
the  proceedings  in  detail.  The  assignments  of  error  are  each  and 
all  of  them  insisted  on. 

1.  The  court  plainly  erred  in  dissolving  the  injunction  (Assign- 
ment 3),  and  in  not  decreeing  a permanent  injunction  (id.  Nos. 
4 and  23),  and  the  removal  of  the  structure  already  placed  in  the 
stream  (id.  No.  24). 

The  court  erred  in  dismissing  the  Information  (id.  Nos.  G,  7, 
25  and  26). 

That  the  court  erred  in  these  res])ects  necessarily  follows  from 
the  law  heretofore  ])resented. 

2.  Tlie  court  erred  in  not  finding  and  de(‘reeing  that  each  and 
evei'y  of  the  contracts  by  the  (hinal  Commissioners  set  up  in 
the  Information  was  void  (Assignments  Nos.  5 and  8-19). 

2).  The  court  erred  in  not  finding  and  decreeing  that  the  i)ei'- 
petual  fiowage  conti*act,  ‘‘Exhibit  A”  was  vo/d  and  without  right 
in  so  far  as  it  assumed  to  grant  a right  to  do  the  acts  and  main- 
tain the  works  therein  mentioned  in  ])erpetuity  (/V/.  No.  12). 

4.  As  to  “Exhibits  1>  and  in  not  finding  and  decreeing  th.at 
each  of  the  same  was  void,  in  so  far  as  it  assumed  to  confer  any 
right  in  excess  of  the  original  term  of  20  years  (id.  Nos.  13-17). 

5.  The  court  erred  in  not  finding  and  decreeing  that  the  Slate 
owned  the  bed  of  the  stream  at  the  site  of  the  dam  in  Section  25 
(id.  No.  20). 

6.  Th.e  court  erred  in  not  finding  and  decreeing  that  the  Des 
Plaines  and  Illinois  Rivers  are  navigable  streams,  (id.  Nos. 
21-22.) 


s5(; 

|)r()j)()sit ions  ai-e  (lis(  iissed  in  dolail  in  tlio  proceeding-  i)or- 
tion  of  tli(‘  brief  and  arginnenl. 

ei-rors  of  Hue  (‘ourt  in  admitting  and  excelnding  evidence  are 
eai)able  of  eoi-reetion  here,  ddiis  court  can  treat  as  admitted  the 
evidence,  so  far  as  preserved  in  tlie  (certificate,  which  was  offered 
and  excluded;  and  it  can,  on  the  otlier  hand,  disregard  and  exclude 
tlie  evidence  which  was  ei*roneously  received. 

But  these  errors  indicate  tlie  unconscious,  inadvertent  tendency 
of  the  court  ])elow,  which  was  to  rule  strictly  adverse  to  the  State 
as  if  this  were  an  indictment. 

And  they  show  that  tlie  court  erred  in  judging  the  weight  of 
the  evidence.  By  adding  the  excluded  evidence  to  that  received 
the  preponderance  for  the  State  becomes  clear. 

II. 

ERRORS  TX  EXCLUDING  EVIDENCE. 

1.  The  court  erked  in  striking  out  the  historical  reputation 

AND  tradition  EVIDENCE  AS  TO  THE  USE  OF  THE  RIVER. 

The  motion  by  the  defendant  to  strike  out  is  found  in  the  ab- 
stract, pp.  955-7,  and  the  ruling  is  found  on  abstract  pages  1223- 
J23S. 

The  best  evidence  rule  is  a rule  both  of  requirement  and  of  in- 
dulgence. The  best  evidence  that  the  nature  of  the  case  affords 
is  required,  and  the  best  evidence  that  the  nature  of  the  case 
affords  is  competent. 

Omycliund  v.  Barker^  per  Lord  Hardwicke  and  per  Willes, 
J.,  1 Atkins,  21. 

3 Blackstone’s  Commentaries,  368. 

Burke’s  opening  argument  in  the  trial  of  Warren  Hast- 
ings (11  Burke’s  Works,  Little  tk  Brown’s  ed.,  p.  77). 

Best  on  '‘Evidence,”  Section  295. 

The  rule  is  thus  stated  by  Mr.  Wigniore,  2 IVigniore  on  Evi- 
dence, Section  1582,  under  the  general  lieading:  "Exceptions  to 
the  Hearsay  Buie:  Beputation  About  Land-Bights”: 


8:>7 


LAND-P.orNDAKlKS  AN!)  La  N !)-( ’ I \ST( ) M S. 

1.  Till’:  NFAJKSSn’Y  IMilNCMlMiF. 

^17)8:^.  Maitfr  must  i’»F  ANciFNT.  In  lli(i  (ifTort  to  put  a 
iiinit  to  the  use  of  repiitation-ovidence,  and  to  phrase  the  con- 
ditions of  necessity  in  which  it  could  be  resorted  to  in  default 
of  better  evidence,  tlie  element  of  anticpiity  came  to  l)e  made 
the  fnndamntal  characteristic  of  this  branch  of  the  Exception. 
When  the  phrase  about  ‘])est  evidence’  began  to  he  invoked 
{ante,  ^1173),  and  its  corollary  was  referred  to,  that  the  ‘best 
evidence’  might  1)e  dispensed  with  if  it  could  not  l)e  had,  one 
of  the  specific  rules  sometimes  associated  witli  it  was  the 
present  one;  that  is  to  say,  in  ancient  matters  of  certain 
sorts  the  ‘best  evidence’  obtainable  was  reputation-evidence. 
An  ‘ancient’  matter  would  ordinarily  be  a matter  upon  which 
no  living  witnesses  haAung  personal  knowledge  were  attain- 
cd^le;  so  the  reputation  is  often  predicated  as  coming  merely 
from  deceased  persons,  or  deceased  old  persons.  The  phras- 
ing varies  loosely;  Imt  the  common  idea  is  the  same,  namely, 
that  it  is  to  be  the  reputation  of  a past  generation,  and  thus 
is  to  deal  with  a matter  of  which  there  can  be  no  witnesses 
of  the  present  generation  having  a personal  knowledge.” 

Here  ^Mr.  Wdgmore  (juotes : 

“1810,  Swift,  C.  d.,  Evidence,  131:  ‘The  law  has  there- 
fore wisely  rejected  all  hearsay  evidence,  excepting  where 
it  is  impossible  in  the  nature  of  things  to  obtain  any  other. 
* * * This  ha})i)ens  in  matters  of  long  standing,  where 

the  witnesses  who  were  knowing  to  them  are  not  in  being. 
Such  are  * * * the  ancient  boundaries  of  land.’ 

1800,  Selden,  J.,  in  ]\I  chin  non  v.  lUiss,  31  N.  Y.,  318:  ‘The 
fact  sought  to  he  ))roved  being  of  too  aiuhent  a date  to  be 
proved  by  eye-witnesses,  and  not  of  a character  to  be  made  a 
niatter  of  ])ublic  recoi’d,  unless  it  ('ould  be  ])roved  by  tradition 
tliere  would  seem  to  be  no  mode  in  which  it  could  be  estab- 
lished. It  is  a universal  rule,  founded  in  necessity,  that  the 
best  evidence  of  whi(‘h  the  nature  of  the  case  admits  is  always 
receivable.’ 

Tn  the  ITnited  States  the  (piestion.  (‘ame  up  most  frequently 
with  reference  to  lioundaries  of  land,  and  the  s])ecial  neces- 
sity of  re])utation-evidence  in  such  (‘ases  was  often  noticed: 

1797,  per  enriam,  in  Mont(f()}nery  v.  Dieley,  3 Yeates,  313: 
‘Tt  must  be  obvious  that  when  the  country  becomes  clearecT 
and  in  a state  of  im])rovenient,  it  is  oftentimes  difhcult  to 
trace  the  lines  of  a survey  made  in  early  times.  The  argu- 
ment ex  neeessitate  rei  will  therefore  ajiply.’ 

1837,  Tucker,  C.  J.,  in  Tlaniman  v.  Broirn,  8 Leigh,  707 : 
‘Questions  of  boundary,  after  the  lapse  of  many  years,  be- 
come of  necessity  (piestions  of  hearsay  and  reputation.  Eoi* 


858 


hoiiiidarios  are  arlificiai,  arbitral y,  and  often  ])erisliable ; and 
when  a generation  or  two  have  passed  away,  they  (ainnot  lie 
established  by  tlie  testimony  of  eye-witnesses.’ 

1855,  IhvLTZKiJ.,  (\  d.,  in  DdfjfjeH  v.  Willey,  (>  Fla.,  511': 
‘Re])ntation  or  iieaisiay,  taken  in  connection  witli  other  evi- 
dence, is  entitled  to  respect  in  (aises  of  lioundary  wlien  the 
la})se  of  time  is  so  great  as  to  render  it  difficult,  if  not  im- 
possible, to  prove  the  boundary  by  the  existence  of  tlie  primi- 
tive landmarks  or  other  evideiu'e  than  that  of  hearsay.’ 

The  repdidiioH  offei'ed  must  also  be  ancient,  i.  e.,  of  a [last 
generation. 

(5)  if  the  reputation  is  sliown  by  means  of  the  retiorted 
statements  of  individuals  {post  ^158-t),  the  persons  whose 
statements  are  rejiorted  must  be  shown  to  be  deceased. 

'1.  THP::  CIKCUMSTANTTAL  GUARANTEE  OF  TRUST WORTHINP^SS. 

^1588.  (General  principle,  He]mtation  as  Trustwortliy. 
The  element  liere  Ojierating  to  supply  a fair  degree  of  trust- 
worthiness is  the  third  alieady  notic^l  {diife,  ^1422),  namely, 
the  consideration  that  the  ])rolonged  and  constant  exposure 
of  a condition  of  things  to  observation  and  discussion  by  a 
whole  community  wall  in  certain  cases  sift  the  ])ossib!e  errors 
and  will  bring  tlie  resulting  belief  down  to  us  in  a residual 
form  of  fair  trustworthiness.  These  conditicns  are  usually 
found  wdiere  the  matter  is  one  which  in  its  rmture  affects  the 
common  interests  of  a number  of  persons  in  the  same  locality, 
and  tliiis  necessarily  becomes  the  subject  of  active,  general, 
and  intelligent  discussion;  so  that  whenever  a single  and 
definite  consensus  has  been  reached  in  tlie  sliape  of  common 
reputation,  it  may  be  supposed  to  have  considerable  evi- 
dential value. 

* * * * * 

(§1584.)  * * * "ppg  common  form  of  question  put  to  a 

reputation-witness  was:  ‘What  have  you  heard  old  men,  now 
deceased,  say  as  to  the  reputation  on  this  subject?’  The 
judges  constantly  siieak  of  ‘reputation  from  deceased  per- 
sons.’ Thus,  thoiigli  in  form  the  information  may  be  merely 
wdiat  deceased  persons  have  been  heard  to  say  about  a cus- 
tom, yet  in  effect  it  comes  or  ought  to  come  from  them  as  a 
statement  of  tlie  re])utation. 

(§1586.)  * * * rough-and-ready  test,  we  may  thus 

say  that  the  matter  should  lie  one  of  public,  or  yeuerdl,  or 
public  dud  gencrdL  hit  crest:  and  this  is  the  common  phras- 
ing; though  it  varies  thus  looselv.  But  this  is  still  only  a 
rule  of  thumb.  To  decide  difficult  cases  it  is  necessary  still 
to  seek  the  living  principle,  and  ask  anew  whether  the  matter 
is  of  such  general  interest  to  the  community  that  by  the  thor- 


silling  of  at'tivo,  ('onslant,  and  inlolligcnit  discussion 
a fairly  tnislwoidliy  ro])iitation  is  likely  to  arise. 

1895,  SEVMOua,  ,1..  in  liobivFon  v.  Deirhrirst,  15  (k  C.  A., 
4()();  ()8  Fed.,  od():  ‘Tlie  exception  raises  a (piestioii  regard- 
ing tliat  exception  to  tlie  general  rule  excluding  liearsay  evi- 
dence wliicli  permits  such  evidence  to  he  given,  under  cer- 
tain limitations,  in  cases  of  ancient  boundaries.  Tlie  excep- 
tion, as  it  originated  in  the  English  courts,  was  confined  to 
such  boundaries  as  were  matters  of  public  concern,  and  was 
part  of  a larger  exception  to  the  rule.  On  (puestions  respect- 
ing the  existence  of  manors;  manorial  customs;  customs  of 
mining  in  ])articular  districts;  a parochial  modus;  a boundary 
between  counties,  parishes,  or  manors ; the  limits  of  a town ; 
a right  of  common;  a prescriptive  liability  to  rei)air  bridges; 
the  jurisdiction  of  certain  courts, — matters  in  which  the, public 
is  concerned,  as  having  a community  of  interest,  from  residing 
in  one  neighborhood,  or  being  entitled  to  the  sar^e  privileges, 
or  subject  to  tlie  same  liabilities, — common  reputation  and  the 
declarations  of  deceased  persons  are  received,  if  made,  ante 
litem  niotam,  by  persons  in  a ]iosition  to  be  ])roperly  cognizant 
of  the  facts.’ 

(Foot  note.)  In  the  following  additional  cases  reputation- 
evidence  was  admitted:  1899,  Evans  v.  Meythyr  Tydfil,  1 Ch., 
241  (whether  a piece  of  land  was  subject  to  commonable 
rights)  ; 1901.  Klinker  v.  Schmidt,  114  la.,  685,  87  N.  W.,  661 
(street  boundary)  ; 1888,  State  v.  Vale  Mills,  68  N.  IT.,  4 (the 
former  line  of  the  road  which  the  iilaintifF  was  charged  with 
obstructing)  ; 1874,  Cox  v.  State,  41  Tex.,  4 (county  lines)  ; 

1824,  Ralston  v.  Miller,  8 Rand,  49  (street  lines). 

# * # * 

(§  1587)  * * * Ij]  tli0  ITnited  States  the  result  has  been 

otherwise.  The  earliest  English  practice  had  clearly  been  to 
admit  reimtation  as  to  ]irivate  titles,  and  it  is  therefore  nat- 
ural to  find,  on  questions  of  ])rivate  boundary,  that  reputa- 
tion was  regularly  admitted  without  question  in  the  early 
American  cases.  Then,  when  the  English  cases  of  the  early 
1800s  became  known  to  our  judges,  and  the  (piestion  was  ar- 
gued on  its  merits  as  a matter  of  principle,  the  decision  was 
reached— entirely  in  harmony  with  the  conditions  of  life  at 
the  time — that  the  rule  ouglit  to  admit  reputation-evidence 
of  the  landmarks  of  ])rivate  title: 

1887,  Tucker,  J.,  in  Harriman  v.  Broirn,  8 Leigh,  708:  ^Re- 
cause  we  have  not  manors,  shall  we  therefore  lose  the  benefit 
of  the  rule  which  considers  boundary  as  matter  of  i*e])uta- 
tion  and  permits  hearsay  evidence  of  its  locality?  Ff  a like 
state  of  things  exists  among  us,  if  the  principle  will  be  found 
to  apply  in  its  utmost  strictness,  shall  we  reject  the  evi- 


0 


(l(‘ii('(‘  l)(*(‘aiis(‘  the  (Mse  is  not  identical?  l>y  no  means  * * 

( Artec  (|iioting  l.ord  Kenyon’s  language,  supra.)  If  rep- 
utation is  admissible  to  establish  tlie  boundaries  of  a manor 
because  all  tlie  tenants  of  a manor  are  interested  therein 
and  naturally  conversant  about  tlie  boundary,  and  may  be 
presumed  to  discourse  together  about  it,  what  shall  we  say 
in  the  case  of  our  wild  lands,  which  were  covered  with  early 
adventurers  whose  chief  concern  was  to  make  themselves  ac- 
(juainted  with  the  lines  and  corners  of  all  around  them!  * * 

* Kvery  one  knows  that  such  subjects  were  not  only  the 
familiar  topics  of  conversation,  but  that  they  were  the  all- 
absorbing  topics.  I will  venture  to  conjecture  that  for  one 
discussion  in  private  conversation  about  the  boundaries  of 
an  Kngiish  manor,  there  have  been  a hundred  animated  and 
interested  debates  about  the  situation  of  a corner  tree  in  our 
western  countries.  I take  it  therefore  that  every  motive 
for  the  admission  of  hearsay  testimony  as  to  boundary  in 
case  of  a manor  applies  with  equal  force  to  its  admission  in 
questions  of  boundary  with  ns.’ 

1860,  Field,  C.  J.,  in  Morton  v.  Folger,  15  Cal.,  279:  ‘In 
this  country  the  admissibility  of  this  kind  of  evidence  * * 

has  been  uniformly  maintained  when  the  tract  originally 
surveyed  was  large,  and  was  subsequently  subdivided  into  nu- 
merous farms,  the  boundary  of  the  original  tract  serving  as 
a boundary  of  the  several  farms.  In  cases  of  this  kind,  the 
principles  upon  which  the  evidence  is  received  has  been  re- 
garded as  similar  to  that  which  relates  to  boundaries  of  a 
manor  or  parish.’ 

***** 

(§  1593,  1801,  Foot-note  4)  1882,  Neill  v.  Duke  of  Devon- 
shire, L.  R.,  8 App.  Cas.,  147  (Selborne,  L.  C.)  : ‘Such  evi- 
dence, admissible  in  cases  in  which  evidence  of  reputation  is 
received,  is  not  itself  in  any  proper  sense  evidence  of  repu- 
tation. It  really  stands  upon  a higher  and  a larger  prin- 
ciple, especially  in  cases  like  the  present,  of  prescription; 
^ * It  comes  within  the  category  of  res  gestae  and  of 

declarations  accompanying  acts.  * * * Tpg  effect  of  this 

evidence  * * * is  extremely  strong  to  establish  a state  of 

possession  and  enjoyment  of  the  fisheries;’  Lord  O’Hagan: 
‘I  think  the  proceedings  were  admissible,  not  as  evidence 
of  reputation,  which  I agree  they  are  not,  but  of  something 
higher  and  better  than  reputation,  * * * of  the  posses- 
sion in  fact  at  the  time  of  the  bills  being  filed  of  the  several 
fishery  * * * Evidence  of  acts  and  proceedings  ivitli 

reference  to  the  river  generallg — the  leases,  the  covenants  and 
reservations,  the  actions,  the  judgments,  the  licenses,  and  the 
successful  assertions  of  right  under  the  patents — was  prop- 
erly admitted.’ 


861. 


{>5  1596)  1>.  P]veiits  ol*  (xeiioral  llistoi'y. 

The  g(MUM*al  ])riiK‘ipIes  of  tins  l)ranoli  of  the  (‘X(‘oi)tion  do 
not  differ  niaterially  from  those  of  the  prec^eding  one;  but 
the  line  of  ])recedents  is  a separate  one,  and  the  seope  of 
a[)plieation  is  in  some  respect  broader;  so  that  it  seems  niorci 
})rofital)Ie  to  regard  it  as  a distinct  branch  of  the  excey)- 
tion. 

1597)  Matter  must  be  ancient;  statutory  regulation. 
Tlie  principle  of  necessity,  allowing  the  use  of  this  class  of 
evidence,  is  the  same  as  that  already  examined  (ante,  § 1582), 
namely,  the  matter  as  to  which  the  history  or  other  treatise  is 
offered  must  be  an  ancient  one,  or  one  as  to  which  it  would 
be  unlikely  that  living  witnesses  could  be  obtained.  In  other 

words,  it  must  be  a matter  concerning  a former  generation. 

^ ^ ^ 

(§  1598)  * 1847,  Sanford,  V.  C.,  in  Bogardus  v. 

Trinity  Church,  4 Sandf.  Ch.,  724:  ‘The  statements  of  his- 
torians of  established  merit  * * * are  from  necessity  re- 
ceived as  evidence  of  facts  to  which  they  relate  * re- 

stricted to  facts  of  a yiublic  and  general  nature.’ 


1599,  Footnote  1)  Other  examyiles  are  as  follows:  Eng- 
land: 1672,  St.  Katherine’s  Hosy^ital,  1 Vent.,  151,  (‘It  was 
shewn  out  of  Syieed’s  Chronicles  y^u'oduced  in  Court,  that  at 
that  time  Queen  Isabel  was  under  great  Calamity  and  Oyo- 
pression,  and  what  was  then  determined  against  her  was  not 
so  much  from  the  Right  of  the  Thing  as  the  Iniipiity  of  the 
Times’) ; 

1682,  Bronuker  v.  Atkyns,  Skinner  14  (‘Speed’s  Chronicle 
was  given  in  evidence  to  ])rove  the  Death  of  Isabel,  Queen 
Dowager  to  E.  II ; and  though  Maynard  seemed  to  o])y)ose  it, 
and  Dobbins  said  it  was  done  by  Consent;  yet  the  Chief  Jus- 
tice said  he  knew  not  what  better  Proof  could  be  made.  And 
Wallop  said  that  in  the  Lord’s  House  it  was  admitted  by  them 
as  good  evidence  in  the  Lord  Bridgewater’s  Case’);  1684,  L. 
C.  J.,  Jeffreys,  in  Lady  Jvy’s  Trial,  10  How.  St.  Tr.  555,  625 
(rejecting  a history  offered  to  show  the  date  of  Charles  V’s 
abdication  and  Philiy)  and  Mary  becoming  king  and  (pieen  of 
Spain,  over  a century  before:  ‘Instead  of  records,  the  uyi- 
shot  is  a litle  lousy  history  ^ * y^  a y^rinted  history, 

writen  liy  I know  not  who,  an  evidence  in  a court  of  law!’); 

1718,  Proceedings  respecting  the  Education,  etc.,  of  the 
Royal  family,  15  How.  St.  Tr.  1202,  1203,  1206,  1209  (the 
Judges  drew  up  an  opinion  upon  the  King’s  prerogative  in  the 
matter,  and  cited  precedents  on  the  exercise  of  the  preroga- 
tive from  Rymer’s  Poedera,  Lord  Clarendon’s  History,  Cot- 
ton’s Record,  Kennett’s  History  of  England,  Burnet’s  His- 
tory of  the  Reformation) ; 


United  States:  1834,  Marguerite  v.  Chouteau,  3 Mo.,  540, 
555  (l)iiPratz,  Harlfe  Marbois  and  others’  works  consulted  as 
1o  tlie  existence  of  slavery  of  Indians  in  America  in  the  1700s; 

1830,  Co.  V.  Alburger,  1 Whart,  409,  473,  (a  letter  of  William 
Penn  confirming  a certain  grant;  its  mention  ^in  Proud  and 
various  other  historical  works’  treated  as  sufficient,  the  matter 
being  ancient) ; 

1809,  Baird  v.  Rice,  03  Pa.,  489,  490  (in  determining  the 
ancient  plan  of  London’s  streets,  etc.,  so  as  to  interpret  Penn’s 
])lan  of  Philadelphia,  the  following  works  were  consulted; 
Maitland’s  Histoi’y  of  London,  1754;  Bohn’s  Pictorial  Hand- 
book of  London,  1854;  Great  London  Directory,  1855); 

1811,  lladfield  v.  Jameson,  2 Munf.,  53,  71,  per  Tucker,  J. 
(Edward’s  History  of  the  West  Indies,  used  to  show  the  gov- 
ernment of  Plispaniola).” 

(Wigmore  on  Evidence,  Vol.  11,  pp.  1933-1947.) 

See  also  as  to  reputation  and  tradition  evidence: 

1869,  Ringhouse  v.  Kelner,  49  111.,  471.  Testimony  of  friends 
that  ^diis  death  was  announced  in  the  newspapers  and  he 
was  spoken  of  by  his  acquaintances  as  dead.” 

Onondaga  Nation  v.  Thatcher,  29  N.  Y.  Misc.,  421;  61 
Y.  Y.  Supp.,  1027. 

^‘Morgan’s  League  of  the  Iroquois”  received  ''a  subject  of 
special  history  should  receive  evidence  of  such  special  history.” 

Birmingham  v.  Anderson,  40  Pa.  St.,  506. 

Fisher  v.  Carter,  1 M^alh,  Jr.,  69;  9 Fed.  Gas.,  4815. 


THE  DES  PLAINES  RIVER  IS  A LAND  BOUNDARY  AND  HIGHWAY. 

It  has  all  the  physical  characteristics  of  a line  and  boundary, 
extending  through  the  land  and  dividing  ownership  of  one  from 
another. 

This  river  is  itself  a houndary  between  Cook  County  and  DuPage 
County,  between  Lockport  and  lYest  Lockport,  and  is  the 
boundary  of  several  town  sites  and  plats  all  the  way  down  the 
stream. 

Its  use  marking  it  as  navigable  characterizes  it  as  a higluvay 
and  fixes  the  houndary  hetiveen  private  and  public  rights. 

It  follows  that  according  to  the  strict  rule  laid  down  by  the 
authorities  assembled  by  Mr.  IVigniore,  reputation  and  tradition 


8(;:{ 

evidoiuo  as  to  tlio  iiso  of  tlio  sti'oani  as  a liigliway  by  nnai  of  tlic* 
foniier  generations  is  eonipetent  evidence. 

In  l)0(j(iydus  v.  Triiiity  Church  (Sanford’s  (^lancery  Ileports), 
tlie  leaiaied  Vic'e-diancellor,  Sanford,  speaking  in  1847,  stated  the 
princi[)les  thus  (]).  772)  : 

First.  The  sole  possesion  of  Queen  Anne,  and  her  grant 
to  tlie  defendant’s  corporation  on  tlie  23rd  day  of  November, 
1705. 

It  is  to  be  observed  that  the  plea  does  not  assert  that 
the.  Queen  was  the  owner  of  the  farm  granted,  or  that  slie 
had  any  estate  or  title  whatever.  The  averment  relates  ex- 
clusively to  her  possession  and  its  character. 

These  are  facts  of  which  written  evidence  can  scarcely  be 
expected.  Such  testimony  rarely  exists  in  any  case.  And  after 
the  lapse  of  more  than  one  hundred  and  forty  years  not  only 
is  the  testimony  of  living  ivitnesses  of  such  facts  utterly  im- 
possible, blit  even  oral  tradition  respecting  them  has  almost 
invariably  faded  aivay  in  the  dim  shadoivs  of  the  past. 

In  their  search  for  truth  the  courts  are  required  in  instances 
like  the  one  under  consideration,  to  receive  evidence  ivhich 
ivoidd  be  inadmissible,  if  offered,  respecting  events  occurring 
irithin  the  memory  of  living  witnesses.  Thus,  the  statements 
or  historians  of  established  merit,  the  recitals  in  public  rec- 
ords, in  statutes  and  legislative  journals,  the  proceedings  in 
courts  of  justice,  and  their  averments  and  results,  and  the 
depositions  of  witnesses  in  suits  or  in  legal  controversies  are, 
from  necessity,  received  as  evidence  of  facts  to  which  they 
relate,  but  always  with  great  caution,  and  with  due  allowance 
for  its  iupierfections  and  its  capability  of  misleading,  and 
restricted,  as  to  historical  evidence,  to  facts  of  a public  and 
general  nature.  (Bullen  v.  ]\lichel,  4 Dow’s  Pari.  Cases,  297, 
323,  324)”  (House  of  Lords  4819). 

The  case  is  stated  by  the  learned  reporter  thus: 

‘‘Ap])eal  from  the  e^piity  side  of  the  Court  of  Fxchecpier. 
The  respondent,  Michel,  is  vicar  of  the  parish  of  Sturminster 
Newton,  in  the  County  of  Dorset;  and  the  appellant,  Bullen, 
is  the  occupier  of  Bagber  farm  in  that  ]iarish.  The  (juestion 
is,  wliether  a certain  yiayment  in  lieu  of  small  tithes  for 
that  farm  is  or  is  not  a modus.  Michel,  as  plaintiff  below, 
claimed  tithes  of  Bullen,  the  defendant  below,  who 
set  up  moduses,  ancient  customary  payment  in  lieu  of 
tithes.  At  a second  trial  of  an  issue  ordered  to  be  tried  at 
law,  after  evidence  tending  to  prove  the  appellant’s  conten- 
tion, the  respondent  produced  several  documents  to  show  that 
the  ])ayments  were  so  large  that  it  was  incredible  they  could 
liave  been  made  so  far  back  as  the  time  of  legal  memory.  Then 


nil  (‘xtract  from  J)()iiiesday  'Book  was  read,  to  sliow  the  state 
ot‘  the  parish,  and  the  value  of  laud  tliere  at  the  time  of  that 
survey.  It  was  found  that  tlie  elmreh  of  (jlastouliury  held  the 
Ilia 7101*  of  Newton. 

In  oi'dei*  to  iutrodiiee  what  was  ealled  the  Chartulary,  a 
seaix'h  was  ])roved  in  the  Bisho])s  of  Bristol  and  Salisbury’s 
I\egisti*ies  for  tlie  original  endowment,  or  a record  of  it,  and 
that  none  was  to  he  found.  Tliomas  Davis,  steward  of  the 
Mai*({uis  of  ]>atli,  produced  tlie  liook,  called  the  Chartulary, 
from  tlie  muniment  room  of  the  Marquis,  who  was  proprietor 
of  certain  lands  which  had  once  belonged  to  the  abbey,  though 
he  had  none  in  Sturminster  Newton.  This  book,  together 
with  entries  relative  to  the  rights  of  the  abbey,  contained  a 
great  deal  of  miscellaneous  matter,  including  several  idle 
stories;  such  as  an  account  of  the  giants  who  originally  in- 
haliited  the  British  island,  a genealogy  of  the  kings  of  England, 
beginning  tTom  Adam,  something  de  pondere  lanae,  a cal- 
endar a list  of  bulls  and  licenses,  etc.  Then,  after  an  entiy 
of  the  date  1333,  came  the  entries,  without  date,  relating  to 
the  appropriation  of  the  recotry  and  endowment  of  the  vicarage 
of  Newton.  * Then  the  several  articles,  with  the  an- 

nual value  of  each,  were  separately  stated,  from  wliich  it  ap- 
])eared  that  the  net  annual  value  of  the  vicarage  was,  at  the 
time  of  the  entry,  L9  12s  bjd.  There  was  no  mention  in  it  of 
any  money  payment  in  lieu  of  tithes.  A witness  proved  the 
handvvndting  to  be  of  the  time  of  the  1st,  2d,  or  3d  Edwards, 
or  about  the  end  of  the  13th  or  beginning  of  the  1-lth  cen- 
tury. The  taxation  of  Pope  Nicholas  (afterwards  mentioned) 
proved’ that  the  endowment  itself  must  have  been  made  before 
1291 ; and  the  judge,  having  overruled  objections  which  had 
been  urged  against  the  reading  of  the  entries,  stated  to  the 
jury  that  the  entry  appeared  to  be  contemporaneous  with  the 
endowment,  and  was  material  evidence,  as  raising  the 
inference  that  such  a money  payment  as  that  now  contended 
for  could  not  then  have  existed.  Thayer’s  Cases  on  Evi- 
dence,” pp.  442-3.) 

The  evidence  is  held  rightly  admitted,  the  opinions  being  l)y 
Lords  Pedesdale  (Mitford)  and  Eldon.  Eedesdale  said: 

“They  are  evidence  of  reputation  as  to  matters  where  no 
other  evidence  could  be  had  to  rebut  the  presum]>tion  raised  by 
the  other  side ; for  it  is  merely  a presumption.  * ^ This 

then  is  the  next  best  evidence,  and  perhaps  evidence  still  more 
inferior  might  have  been  admitted  if  this  could  not  have  been 
produced.”  (Thayer’s  “Cases  on  Evidence,”  p.  446.) 

In  BogarduH  v.  Trinity  Church  (Sanford’s  Ch.  lie])orts),  evi- 
dence of  this  character  was  received  on  both  sides  subject  to  ob- 


jection.  The  [)rc‘liinin{iry  stntoinenl  by  the  Vi(*o-(biaii(*(ilk)i*  shows 
tliat  ilio  objoctions  wore  all  (‘oiisidered  as  roservod  and  wei^ijbed. 

Among  tbo  ovidenoe  that  was  roceivod  by  the  court  wci’(‘: 

‘‘An  ancint  engraved  map  of  the  city,  exhibiting  New  York 
in  1()95  (id.  "T)53.) 

INfaerschalck’s  ‘Ylap  of  New  York,  1755,’  id. 

Smith’s  ‘History  of  New  York,’  London  Ed.  of  1757,”  id. 

The  defendants  also  put  in  Lieut.  Ratzen’s  “Plan  of  the  City 
of  New  York,”  made  from  the  survey  of  1767;  620  leases  from  the 
Trinity  Church  to  different  persons,  between  1768  and  1831. 

For  the  complainant  Elizabeth  Bogardus  testified  that 

“she  and  her  husband  came  to  the  City  of  New  York  in  1784, 
on  a visit  to  his  father,  who  then  lived  in  a frame  house 
on  the  south  or  lower  corner  of  Chambers  street  and  Broad- 
way. Cornelius  B.  spoke  of  the  house  and  the  land  he  lived  on, 
as  being  part  of  the  land  inherited  by  him,  and  the  other  heirs 
of  Anneke  Jans,  commonly  called  at  that  time  by  him  and 
others  the  Dominie’s  Bowery  and  the  Dominie’s  Hook,  which 
extended  northwardly  from  Chambers  street,  she  does  not  re- 
member how  far.”  (Id.  *689-90.) 

^ * 

“Cornelius  B.  sold  clay  from  a clay  pit,  situate  betwixt 
Peade  and  what  is  now  called  Thomas  street,  and  near 
Hudson  street.  His  claim  to  it  was  notorious,  and  it  was 
always  talked  that  it  belonged  to  him,  and  no  one  disputed 
it.  He  made  them  pay  a shilling  a load  for  it,  and  sued 

some  who  did  not  pay,  and  collected  from  them.”  (id.) 

* * * * 

“Cornelius  B.  said  his  taking  ])ossession  of  that  ])iece  of 
land,  was  the  same  as  taking  ])ossession  of  the  whole  land 
which  the  heir  claimed  as  heirs  of  Anneke  Jans.”  (id.  692.) 

(Note:  The  complainant’s  depositions  were  taken  subject  to 
all  objections  to  the  questions  and  evidence  which  might  he 

proposed  at  tlie  hearing  (id.  *694). 

* * * * * 

“That  a Mrs.  Broad  entered  upon  and  took  possession  of  a 
piece  of  ground  near  North  Moore  street,  called  the  Fort, 
claiming  to  own  it  as  one  of  those  heirs.  There  was  a sort 
of  breastwoT'k  and  trench,  and  a house  within  it.  She  drove 
away  people  who  came  to  take  eai'th  from  the  banks  of  the 
fort,  by  throwing  boiling  water  on  them.  She  kept  possession 
undisturbed,  from  the  time  the  British  left  till  1787  or  1788, 
claiming  as  such  heir.”  (id.  *692.) 


^ HJliaj)iii<ni  testified  that  lie  is  eiglity-orie  years  of  age. 
lie  ('aine  to  tlie  eity  in  1790  and  resided  in  Greenwich  street, 
lie  knew  aii  old  woman  who  lived  in  an  old  redoubt,  and 
she  lived  there  until  she  was  dug  away,  when  she  made  a 
comj)roniise.  This  was  not  earlier  than  1793,  or  later  than 
I Jhh).  ^ ■'  " Deponent  advised  her  to  hold  on  her  posses- 

sion until  she  could  get  something  foi*  it  because  he  thought 
it  was  in  the  way  of  ojjening  Greenwich  street.  He 

knows  nothing  of  any  compromise  between  them  except  by 
common  report.”  (id.  *09^) 

“The  complainants  read  in  evidence  the  Assembly  Journal 
of  1785,  under  date  of  February  8,  showing  the  report  made 
by  the  committee  appointed  to  examine  the  laws  and  records 
of  the  state  concerning  the  right  and  title  to  the  lands 'in 
the  City  of  New  York  formerly  called  and  known  by  the  name 
of  King’s  Farm  and  Garden.”  (id.  *701.) 

“Also  from  the  Senate  Journal  of  1785,  a message  from  the 
assembly.”  (id.  *702.) 

Id.  “Colonial  council  minutes,  in  which  are  entered  at  large 
the  Queen’s  additional  instructions  to  the  then  governor.” 
(id.  *703.) 

And  the  defendants  read  the  Assembly  Journal  of  the  year 
1784,  February  2.  (id.  *708.)  And  several  other  passages 
from  the  Journal. 

The  defendants  argued  against  the  competency  of  the  com- 
plainant’s evidence,  (id.  *713-716)  and  the  complainants  argued 
that  the  defendant’s  case  “is  not  established  by  the  proofs, 
arguing  that  various  letters  produced  from  the  governor  were 
not  under  seal;  that  the  church  corporation  had  entered  under 
lease  and  not  under  patent;  that  there  was  no  evidence  of  ac^ 
ceptance  of  patent;  that  there  was  no  proof  of  authority  to 
give  the  leases,  and  the  leases  ought  to  have  been  left  out.” 
(id.  *719.) 

“That  the  allegation  that  the  church  had  received  all  the 
rents  and  profits  is  not  proof  that  Bogardus  had  quiet  and 
peaceful  possession;  and  the  evidence  is  decisive  against  the 
truth  of  the  plea  that  the  church’s  plea  of  possession  was 
disproved  and  its  possession  broken  and  gone  before  1786.” 
(id.  *720.) 

The  maps  of  New  York  made  in  1695,  1728,  1755,  1767,  and 
the  books  known  as  Dunlap’s  “History  of  New  York”  and 
the  “History  of  the  Province  of  New  York,”  William  Smith, 
are  reviewed  by  the  court  in  pp.  745  to  750. 

Among  other  things,  the  court  said: 

“The  History  of  the  Province  of  New  York,  by  William 
Smith,  is  a work  of  great  authenticity;  and  from  the  circum- 
stances that  its  author  was  an  eminent  lawyer,  born  and  resid- 


lug-  ill  the  province,  and  as  an  ardent  Pres})yterian,  entering 
zealously  into  the  controversies  ot‘  the  day,  especially  the 
one  relative  to  King’s  (now  Columhia)  College,  in  which  1’rin- 
ity  (diiirch  was  very  cons])icuous ; it  cannot  be  suspected  of 
any  partiality  toward  ttiat  church,  or  of  any  disposition  to 
favor  its  cliaracter  or  pretensions.  Tlie  first  volume  of  this 
liistory  was  published  in  1756-7,  bringing  the  narrative  of 
events  down  to  the  year  1736;  and  the  appendix  contains 
an  account  of  the  state  and  condition  of  the  colony  at  the  time 
of  its  piddication.  In  his  description  of  the  ‘City  and  County 
of  New  York,’  the  author  describes  the  line  of  Palisadoes  as 
laid  down  on  Maerschalck’s  map.”  * * * 

"‘In  the  second  volume  of  Judge  Smith’s  history,  published 
by  his  son  after  his  death,  the  author,  in  giving  his  account 
of  the  political  and  sectarian  struggles  preceding  the  char- 
tering of  King’s  college,  says,  etc.”  (id.  *746-7.) 

(Sanford’s  Chancery  Eeports.) 

The  report  of  the  case  is  very  full,  and  gives  the  evidence  on 
both  sides. 

No  proof  of  authenticity  or  of  Judge  Smith’s  standing  as  a 
lawyer  or  of  his  church  connections,  or  of  the  standing  of  his  son, 
through  whom  the  appendix  bringing  the  work  down  to  date  was 
published,  is  shown  in  the  case. 

Upon  all  these  points  the  court  exercised  its  own  poivers  of  ju- 
dicial notice.  It  knew  the  standing  of  a book  written  in  the  City 
of  New  York  and  about  the  City  of  New  York,  or  a work  of  the 
province,  just  as  this  court  knows  the  standing  of  a book  written 
in  Illinois  about  Chicago  and  Peoria  and  Joliet,  Illinois,  and  the 
Des  Plaines  Eiver  as  a link  in  the  waterway  connecting  them. 

We  are  not  concerned  with  the  outcome  of  that  case,  by  which 
the  title  of  the  Dutch  heirs  and  their  peaceable  possession  For  rije 
few  years  at  the  close  of  the  Eevolution  was  held  to  be  that  of 
intruders,  and  the  title  of  the  church,  which  was  in  possession 
before  the  Eevolution,  and  which  forcibly  repossessed  itself  after 
the  Eevolution,  was  sustained. 

But  it  will  be  seen  that  the  evidence,  by  which  the  Court  sus- 
tained this  title,  was  of  the  same  character  as  the  historical  repu- 
tation and  tradition  evidence  presented  by  the  State  in  the  case 
at  bar,  and  of  the  kind  described  by  the  learned  Vice-Chancelor 


808 


in  the  extract  from  his  opinion,  with  wiiicli  we  prefaced  this  suni- 
inary. 

'^riie  evidence  ot  ])articnlai‘  acts  on  both  sides  was  given  at  great 
length;  and  as  to  the  evidence  of  particular  acts  by  Bogardus,  Inm- 
self,  in  selling  gravel  from  the  land,  the  court  held  not  that  it  was 
incompetent,  ])nt  that  it  was  unimportant: 

‘‘The  testimony  as  to  fue  gravel  ])it  is  unimportant,  for  it 
is  clear  that  it  was  not  on  the  Church  Farm,  or  the  Dominie’s 
Bowery.”  (id.  ^^753.) 

The  complainant  had  claimed  that  possession  of  part  was  pos- 
session of  the  whole.  The  acts  of  possesion  were  on  the  part  as 
to  which  there  was  little  dispute.  And  they  were  proved  by  repu- 
tation. The  court  held  not  that  it  was  not  proved  they  wer(3  pos- 
sessed, but  that  the  possession  wms  otherwise  shown  to  be  intinisive. 

The  court  recognized  that  in  taking  the  testimony  of  unlearned 
witnesses  to  matters  of  tradition  and  reputation  such  witness  nat- 
urally tend  botli  to  remember  and  tell  the  striking  specific  act  out 
of  which  the  reputation  arose  and  give  it  greater  imy^ortance 
than  the  reputation  itself. 

Much  reliance  contra  was  placed  upon  McKinnon  v.  Bliss,  21 
X.  Y.,  216,  affirming  Barb.,  180,  in  which  Benton’s  History  of 
Herkimer  County  was  discussed  in  the  Court  of  Appeals,  and  said 
to  be  incompetent. 

The  case  was  stated  thus,  below: 

“Action  of  ejectment  for  about  60  acres  of  land  in  Herki- 
mer County,  part  of  lots  9 and  11  in  Susannah  Johnson’s 
3,000  acre  tract  in  the  4th  allotment  of  the  royal  grant,  in 
the  towui  of  Salisbury,  Herkimer  County.  The  tract  known 
as  the  ‘royal  grant’  embraces  a portion  of  the  town  of 
Herkimer,  and  the  principal  portion  of  Fairfield  and  New- 
port, parts  of  Eussia  and  Manheini,  and  all  the  settled  part 
of  Salisbury.  The  plaintiffs  gave  in  evidence  the  will  of  Sir 
AVilliam  Johnson  (the  grantee),  by  which  3,000  acres  of  the 
royal  grant  were  demised  to  Susannah,  and  they  deduced 

. title  to  the  premises  in  question  under  Susannah  Johnson. 
They  also  referred  to  certain  acts  of  the  legislature  of  the 
state,  relating  to  the  escheat  and  forfeiture  of  certain  ])arts 
of  the  royal  grant  as  the  property  of  Sir  John  Jolinson,  and 
reciting  that  they  did  of  right  belong  to  others,  including 
Susannah.  Jolmson;  but  tb.e  enacting  part  of  the  statute  did 
not  relate  to  the  title  of  Susannah  Johnson.  After  ]:)roof 


80!) 


of  a sear('li  in  tlu'  stale  offiees  ot*  lliis  state  and  in  tin;  (tlerk’s 
olli(‘es  ot  several  ('onnties,  aaid  llial  the  palcait  to  Sir  William 
dolmson,  ol‘  llu^  tra(d  known  as  llu^  rcival  j^raiit,  (!oiil(l  not 
be  found,  the  plaintiff  ])rOpOi;nded  this  (jiiestion  to  a witn(‘ss: 
‘ Wliat  is  re})oi'ted  ainon^*  tlie  settlers  of  this  tra(d,  to  have 
been  the  disposition  made  of  the  instrnments  of  title  or  let- 
ters patent?’  Whic'ji  vjas  objected  to  am'l  excluded  by  tlie 
court,  and  the  plaintiff  was  nonsuited,  on  the  ground  that 
the  patent  was  not  sufficiently  proved.  The  cause  was  tried 
at  the  Herkimer  circuit,  in  May,  1856,  l^efore  Pratt,  justice. 
The  plaintiff  appealed.”  (31  Eaiffiour’s,  pp.  180-181.) 

The  Supreme  C^ourt  (coi responding  to  our  Appellate  Court) 
said : 

‘‘Hearsay  or  reputation  is  never  evidence,  except  in  par- 
ticular cases,  and  when  from  the  nature  of  things  no  better 
or  higher  evidence  can  be  obtained.  {Gould  v.  Smith,  35  Maine 
Pep.,  513.)  But  in  this  case  the  plaintiffs  had  not  exhaustecf 
the  sources  of  other  and  better  evidence.  Had  possession 
accompanied  the  devise  of  Sir  William  Johnson,  it  would  have 
been  different,  and  the  court  might  have  been  authorized  to 
presume  a grant  from  the  crown.  The  ])laintitfs  count  anc! 
found  their  claim  of  title  upon  the  prerogative  of  the  king 
as  the  universal  occu})ant  of  all  derelict  lands,  and  the  orig- 
inal owner  of  all  the  lands  within  his  domains.  The  title  of 
the  king  was  in  right  of  his  crown,  and  could  only  ])e  granted 
by  him  in  pursuance  of  law. 

I am  unable  to  see  why  the  pro])er  evidence  was  not  an 
exemplification  from  the  })roper  offices  in  England,  or  at 
least  some  evidence  that  u])on  apjdication  to  those  offices  no 
record  was  to  l)e  found.  The  places  in  which  search  was 
made  would  not  be  likely  to  repay  the  la])or  by  bringing  to 
light  the  desired  instrument.  It  is  not  unlikely  that  if  any 
t)atent  was  ever  granted  for  the  tract  in  question,  it  was  taken 
to  Canada  on  the  flight  of  the  indivi(!ual  who  succeeded  to  the 
possession  of  the  instruments  of  title  of  Sir  AVilliam  John- 
son, and  remained  there.  The  evidence  afforded  by  the  stat- 
utes I'elied  upon  l)y  the  plaintiff  was  very  slight  as  to  the 
existence  of  any  grant  from  the  crown  to  Sii*  WTlliam  John- 
son, even  if  they,  or  the  recitals,  would  l)e  evidence  against  a 
stranger,  which  may  be  (ioubtful.  They  furnished  no  means 
of  ascertaining  the  extent  or  boundaries  of  the  tract,  or  the 
estate  gi*anted,  or  the  conditions  of  the  grant  or  whether  it 
was  without  condition  and  al)solute.  It  would  1)e  quite  too 
slight  evidence  to  authorize  a judgment  of  ouster  against  a 
party  in  possession.  But  it  is  enough  to  say  that  the  second- 
ary evidence  was  not  com])etent,  for  the  reason  that  the 
higher  evidence,  if  any  existed,  was  witliin  the  reach  of  the 
])arty.”  (31  Barbour’s,  181-182.) 


870 


On  further  a])])enl  to  the  Ooiirt  of  Appeals,  that  court  took  a 
different  view.  The  court  there  stated  the  matter  thus: 

“Upon  the  trial  before  Mr.  Justice  Pratt  and  a jury,  the 
plaintiffs  read  in  evidence  an  exemplified  copy  of  the  will  of 
Sir  William  Johnson,  dated  January  27,  1774,  and  which  was 
l)roved  before  the  surrogate  of  Tryon  county  in  July,  1774. 
This  will  recited  that  ‘his  present  majesty  George  the  Third, 
was  graciously  pleased,  as  a mark  of  his  favour  and  regard, 
to  give  me  a patent  under  the  great  seal  for  the  tract  of  land 
now  called  Kingsland.’  It  devised  to  different  persons  ninety- 
two  thousand  acres  of  that  tract,  designating  it  as  Kingsland, 
or  the  Royal  Grant.  Among  the  devisees  were  the  eight 
natural  children  of  Sir  William  by  his  housekeeper  Mary 
Brant,  an  Indian  woman.  Susanna,  one  of  these  children, 
was  the  devisee  of  three  thousand  arcres,  and  the  plaintiffs 
proved  a chain  of  conveyances  by  her  and  her  grantees,  one 
of  which  dated,  dated  April  1st,  1797,  was  to  James  Cochran, 
who  conveyed  to  the  father  of  the  plaintiffs.  They  also 
proved  that  fruitless  search  had  been  made  for  the  patent  to 
Sir  William  Johnson,  or  a copy  thereof,  in  all  the  State  Offices 
in  Albany,  and  in  various  other  public  offices  in  this  State. 
They  then  called  Mr.  Ford,  who  testified  that  he  was  a coun- 
sellor at  law,  had  resided  in  Herkimer  county  forty  years, 
and  had  been  conversant  with  titles  and  real  property  in  that 
county.  He  knew  the  tract  of  land  designated  as  the  Royal 
Grant,  which  included  several  towns  and  parts  of  towns, 
and  knew  the  tradition  current  among  settlers  on  that  tract 
concerning  the  letters  patent.  The  plaintiffs  then  proposed 
to  ask  him,  ‘what  is  reported  among  the  settlers  of  this  tract 
to  have  been  the  disposition  made  of  the  instrument  of  let- 
ters patent!’  The  testimony  was  excluded,  and  the  plaintiffs 
took  an  exception. 

The  plaintiffs  then  read  in  evidence  two  statutes  of  this 
State.  One,  an  act  for  the  relief  of  Jacob  Merkle  and  others, 
passed  February  26,  1797  (3  Greenleaf,  271),  recites  that  ‘it 
is  represented  to  the  legislature  that  the  Commissioners  of 
Forfeitures  for  the  AVestern  District  of  this  State  have,  by 
mistake,  sold  certain  lands  in  the  Royal  Grant,  belonging  to 
the  estates  of  Peter  Johnson,  the  natural  son  of  Sir  William 
Johnson,  Baronet,  deceased,  as  a part  of  the  forfeited  estate 
of  Sir  John  Johnson,  Baronet,  which  lands  did  of  right  belong 
to  Susanna  Johnson  (and  others  named)  the  surviving 
brothers  and  sisters  of  the  said  Peter  Johnson  as  devisees  of 
the'  said  Sir  William  Johnson,  deceased.’  * * * 

David  Dudley  Field,  for  the  appellants,  argued,  among 
other  tilings,  that  the  courts  should  take  judicial  notice  that 
there  wms  a patent  from  the  Britsh  Crown,  before  the  Revolu- 
tion. of  a tract  of  land  known  as  the  Royal  Grant.  He  re- 


forreci,  in  addition  to  the  statutes  read  in  evidence  npon  the 
trial,  to  several  other  laws  which  assume  or  recognize  the 
ownership  by  Sir  William  dohnson  of  a large  tract  called  the 
Koyal  Grant,  and  that  it  bad  been  devised  by  him  and  the 
title  of  some  of  the  devisees  forfeited  to  the  People  of  this 
State  by  reason  of  their  treasonable  adherence  to  the  Crown 
during  the  lievolution.  These  he  insisted  were  recognitions 
by  the  people  of  this  State,  the  fountain  of  all  titles  not  de- 
rived from  previous  royal  grants,  that  such  a title  had  vested 
in  the  devisees  of  Sir  William  Johnson,  which  was  good 
against  the  People,  except  so  far  as  the  land  had  been  for- 
feited by  attainder.  He  also  cited  some  of  the  documents 
relating  to  the  Colonial  History  of  this  State  published  by 
order  of  the  legislature,  referring  to  the  Koyal  Grant.  He 
read  from  Benton’s  History  of  Herkimer  county  to  show  the 
extent  and  population  (several  thousands)  of  the  Eoyal 
Grant,  and  a prevailing  tradition  among  its  occupants  of  the 
manner  in  which  the  title  had  been  acquired  and  the  way  in 
Vvdiich  the  letters  patent  had  been  destroj^ed,  viz. : that  having- 
been  buried  in  the  earth  by  the  heirs  of  Sir  William  Johnson 
during  the  Pevolution,  they  had  decayed  and  crumbled  into 
illegible  fragments.  Finally  he  produced  a duly  authenticated 
copy  from  the  public  records  office  in  London  of  the  original 
letters  patent,  which  were  discovered,  since  the  argument  in 
the  Supreme  Court,  to  have  been  there  recorded. 

Selden,  J.  The  first  question  presented  by  this  case  is, 
whether  it  was  sulhcieutlv  estal)lished  u})on  the  trial,  that 
Sir  William  Jolmsou,  ])rior  to  his  death  iu  1774,  was  the 
proprietor  of  a tract  called  the  Royal  Grant,  situated  in  the 
now  county  of  Heikimer,  and  embracing  tlie  premises  in 
controversy.  His  title  was  claimed  to  liave  been  derived 
from*  a grant  directly  from  the  British  Crown. 

Foi-  the  ]>ur})oses  of  this  (luestion  [ shall  assume,  that  the 
plaintiffs  had  made  all  the  search  for  the  original  grant  of 
letters  ])atent  which  the  law  rcapiires;  tliat  they  were  not 
bound  to  resort  to  the  government  rec'ords  in  London,  and 
that  the  proof  on  that  subject  was  sufficient,  to  entitle  them 
to  give  secondary  evidence  of  such  gi'ant.  If  then  the  evi- 
dence given  on  that  snbje(‘t,  taken  in  connection  with  facts 
and  circumstances  of  which  the  court  was  authorized  to  take 
judicial  notice,  was  sufficient  to  show  prhna  facie  that  the 
grant  or  y)atent  in  question  had  ever  existed,  the  nonsuit  was 
wrong,  and  the  judgment  should  be  reversed. 

The  only  evidence  actually  introduced  iqion  the  trial,  hav- 
ing any  bearing  upon  the  (piestion,  consisted  in  the  recitals 
contained  in  the  will  of  Sir  AVilliam  Johnson,  and  the  two 
acts  of  the  legislature  passed  respectively  in  February,  1797, 
and  March,  1798.  No  other  evidence  was  given  or  offered. 


Juivilig  any  tendency  to  establisli  the  existence  of  the  patent; 
unless  some  sliglit  weight  he  attached  to  the  fact  stated  by 
.Mr.  h'ord,  that  there  is  a tract  in  Herkimer  county,  known  as 
the  Jloyal  (Irant.  To  establish  that  such  a grant  was  made, 
therefore,  the  counsel  for  tlie  ])laintiff  relies:  First,  upon 
the  recitals  in  the  will.  Secondly,  upon  the  two  statutes  read 
in  evidence;  and  thirdly,  upon  the  ijublic  history  of  the  period 
in  which  Sir  Yvulliain  Johnson  lived,  and  especially  upon  a 
nianuscrii)t  memorird  addressed  to  the  King,  and  dated  in 
]77(),  published  in  the  Colonial  History  of  this  State  (Vol.  7, 
p.  839),  in  which  Sir  William  prays  for  a grant  of  the  tract  in 
question,  of  which  history,  memorial,  etc.,  the  counsel  claims 

the  court  should  take  judicial  notice,  (p.  210.) 

****** 

The  plaintiff’s  title,  therefore,  derives  no  support  from  the 
])roof  actually  given  upon  tlie  trial ; and  it  only  remains 
upon  this  branch  of  the  case,  to  see  vHiether  the  historical  evi- 
dence relied  upon  is  sufficient  to  establish  it. 

There  are  several  A-ery  conclusi\’e  objections  to  this  evi- 
dence. In  the  first  place,  it  Avas  not  introduced  or  offered 
upon  the  trial.  There  are  no  doubt  cases  in  which  courts, 
upon  (questions  addressed  to  them,  may  take  judicial  notice 
of  matters  of  genei*al  history  and  of  public  and  universal 
notoriety,  which  admit  of  no  dispute.  But  upon  the  trial  of 
issues  of  fact  by  a jury,  if  reliance  is  placed  upon  any  matters 
of  this  sort,  some  eAudence  of  them  must  be  adduced.  In  alf 
the  early  cases  on  the  subject,  the  liistories  relied  upon  were 
})roduced  at  the  trial. 

****** 

Another  objection  to  this  evidence  is  that  Benton’s  History 
of  Herkimer  County,  from  AA'hich  most  of  the  facts  relied 
upon  are  drawn,  Avould  not  liaA^e  been  admissible  in  evidence 
if  offered  upon  the  trial.  First,  it  is  doubtful  whether  any 
historical  Avork  can  be  read  in  evidence,  while  the  author  is 
liAung,  and  can  be  called  as  a witness  to  state  the  sources  of 
his  knowledge.  {Morris  \\  Lessee.  Ilarmer’s  Heirs,  7 Peters, 
554.) 

Anotlier  objection  is,  that  it  Avas  not  a general  but  a mere 
local  history.  In  the  case  of  Evans  v.  Getting  (6  Carr  & 
Payne,  586),  where  the  ouestioii  was  as  to  the  boundaries  be- 
tween tAvo  counties,  the  plaintiff  )3roposed  to  read  from 
Xichol’s  History  Brecknockshire.  The  writer  of  this  history 
])rol)ably  had  the  same  interest  in  enlarging  the  boundaries 
of  the  county,  as  any  other  inhabitant  of  it.  It  is  not  like  a 
general  history  of  Wales.  I shall  not  receive  it.’  Tt  may 
AAuth  equal  propriety  be  said  here,  the  writer  of  Benton’s  His- 
tory may  have  had  an  interest  in  establishing  the  title  to  the 
Poyal  Grant.  This  kind  of  evidence  is  only  receiA^ed  from 
necessity,  and  should  be  strictly  guarded. 


87:j 

i^iit  a iHoro  (*A)iieliiHive  ohjcH'lioii  to  any  Jiuna^  hist()ri(!al  evi- 
(lonco  ill  this  (^aso  ivS,  that  siioli  evidence  is  only  adinissilile  to 
prove  facts  of  a general  and  piil)li(‘  nature;  and  not  those 
wliicli  concern  individuals  or  mere  locail  communities.  In  tlui 
case  Si ahics  v.  Ihirgesses  of  Froihcitch  (1  Salk,  281),  (kim- 
den’s  Brittania  was  offered  in  evidence  upon  a ipiestion  as  to 
the  custom  of  Droitwitcli  *,  but  tlie  court  refused  to  receive  it, 
liolding  that  ^a  general  history  might  be  given  in  evidence  to 
prove  a matter  relating  to  the  kingdom  in  general,  because 
tlie  nature  of  the  thing  requires  it,  but  not  to  prove  a par- 
ticular right  or  cusiomd  So  in  the  case  of  Morris  v.  Lessee 
of  Harmer’s  heirs,  supra,  the  court  says:  ‘Historical  facts 
of  general  and  public  notoriety,  may  indeed  be  proved  by 
reputation;  and  reputation  may  be  established  by  historical 
works  of  known  'character  and  accuracy.’  So  in  a late  case 
in  this  State,  viz.:  Bogardus  v.  Trinity  Church  (4  Sand. 
Ch.  E.,  633,  724),  the  Vice-Chancellor,  speaking  of  evidence 
derived  from  public  records,  statutes,  legislative  journals,  his- 
torical works,  etc.,  says  that  it  is  ‘restricted  as  to  historical 
evidence  to  facts  of  a public  and  general  nature.’  There  is 
indeed  no  doubt  that  it  is  strictly  confined  to  facts  of  this 
sort.  History  is  only  admissible  to  prove  history,  that  is, 
such  facts  as  being  matters  of  interest  to  a whole  people,  are 
usually  incorporated  in  a general  history  of  the  state  or 
nation. 

The  historical  evidence  relied  upon,  therefore,  even  had  it 
been  offered  u])on  the  trial,  could  not  have  been  received, 
with  the  exception  ])erhaps  of  the  memoi'ial  of  Sir  William 
Johnson  to  the  King,  published  in  volume  7 of  the  Colo.nial 
History  of  the  State.  I am  inclined  to  think  that  had  a 
proper  foundation  been  laid  for  the  iniroduction  of  this  docu- 
ment, by  sh.owing,  tliat  tlie  tract  known  as  the  Royal  Grant 
had  been  generally  possessed  and  occu])ied  from  the  time  of 
Sir  William’s  death,  under  a claim  of  title  derived  from  him, 
that  both  this  memorial  and  the  will  of  Sir  William  would 
not  only  have  been  admissible,  but  sufficient  i)erhaps  to 
authorize  the  jury  to  ])resunie  thaf  a ])atent  liad  been  issued 
pursuant  to  the  ])rayer  of  the  memorial.  Bnt  such  a docu- 
ment must  clearly  be  introduced  upon  tlie  trial;  and  could 
not  more  be  taken  notice  of  without  })roof,  than  the  ])atenf 
itself,  if  one  was  issued  pursuant  to  its  reipiest.  The  con- 
clusion from  these  views  is,  that  there  was  no  evidence  actu- 
ally introduced  upon  tlie  trial,  nor  any  which  the  jury  had 
a right  to  consider,  which  has  any  tendency  to  establish  the 
fact  that  the  grant  in  question  had  ever  been  made.”  (21  N. 
Y.,  207,  208,  209,  210,  214,  215,  216,  217.) 

The  case  is  a miscarriage  of  justice.  The  trial  court  contended 


S74 


tliat  siifncieiit  searc'li  liad  not  been  made.  Tliey  gave  a slirewd 
guess  tliat  the  original  ])atent  must  have  been  carried  to  Canada 
when  Sir  AVilliam  Johnson’s  children  bed  there,  and  that  there 
ought  to  have  been  ])roof  from  there  or  from  London. 

They  held  that  sufficient  search  had  not  been  made. 

The  Court  of  A})i)eals  held  that  there  had  been  sufficient  search 
made,  but  they  refused  to  receive  a duly  authenticated  copy  of  the 
patent  from  London,  which  had  been  ])roduced  since  the  trial. 

Let  us  hope  that  the  statutory  right  to  a second  trial  in  eject- 
ment cases  was  invoked  in  that  case,  and  that  the  jdaintiff  then 
was  permitted  to  make  his  proof. 

That  was  a jury  case.  Benton’s  History  of  Herkimer  County’' 
was  not  produced  at  the  trial  below  and  was  not  offered  in  evi- 
dence to  the  jury. 

The  court  above,  therefore  declined  to  consider  what  its  effect 
as  evidence  on  the  jury  might  have  been. 

The  authority  of  the  case  ends  there. 

The  court  go  on  and  say  on  the  authority  of  6 C.  & P.,  586,  that 
it  was  not  a general  but  a mere  local  history. 

Wigmore  says  on  this:  (2  AVigmore  on  Evidence,  Section 
1598.) 

‘Hn  some  instances  the  principle  has  been  applied  too 
narrovvdy,  for  example,  in  excluding  county-histories,  for  on 
certain  matters  there  may  be  a general  and  settled  county- 
reputation  which  will  be  quite  as  trustworthy  as  a national 
reputation  upon  national  matters.  There  should  therefore 
be  no  arbitrary  line  excluding  local  histories.” 

In  a foot-note  concerning  6 C.  P.,  586,  the  author  says: 

^‘The  fault  of  this  decision  is  that  it  seems  to  proceed 
upon  the  principle  that  local  interest  excludes  reputation, — 
a principle  seen  ante,  §1589,  to  have  been  repudiated;  the 
above  ruling  largely  influenced  the  two  ensuing:  1860  McKin- 
non V.  Bliss  (rejecting  Benton’s  History*  of  Herkimer 
County) ; 1887,  Bo  ire  v.  Strong,  107  id.,  856  (rejecting  Thomp- 
son’s History  of  Long  Island).” 

It  is  conceded  by  the  authorities  there,  a sstated  by  Atr.  AAJg- 
more  that  (Section  1584)  : 

”AA"hat  is  offered  must  be  in  effect  a reputation,  not  a mere 
assertion  of  an  individual,  but” — 


875 


as  Mr.  Wigiiiore  contiiines, — 

“repTitation  is  made  up  of  and  is  often  learned  through  the 
assertions  of  individuals,  and  it  is  therefore  i)lainly  neces- 
sary to  distinguish  between  assertions  involving  mere  in- 
dividual credit,  and  assertions  involving  a community  repu- 
tation.” 

And  he  continues: 

‘Mn  form,  the  information  may  be  merely  what  deceased 
persons  had  been  heard  to  say  about  the  custom,  yet  in  effect 
it  comes,  or  ought  to  come,  from  them  as  a statement  of  the 
reputation.  ’ ’ 

(For  ‘^custom”  here,  we  may  substitute  boundary^  higJi- 
luay,  or  river;  for  as  the  author  has  previously  stated,  the 
same  principle  applies  to  boundaries  and  highways  as  to  cus- 
toms; and  the  issue  here  is  as  to  the  river  as  a highway. 

In  every  highway  (‘ase,  it  is  asserted  on  one  side  and  denied 
on  the  other  that  the  locus  was  a highway,  and  the  reputa- 
tion and  tradition  evidence  is  directed  to  the  user  of  the 
locus.  The  reputation  that  there  teas  such  user  is  compe- 
tent; and  the  evidence  is  more  cogent  and  less  diffusive  as  to 
a natural  river  hightvay  than  as  to  a highway  on  land,  because 
the  locality  of  a highway  on  land  as  well  as  the  user  is  a 
subject  of  doubt  in  dispute,  whereas  in  the  case  of  a river 
highway,  the  locality  is  fixed  by  nature  and  beyond  dispute, 
leaving  only  the  user  as  a subject  to  which  the  evidence  is 
directed.) 

The  typical  case  quoted  by  Mr.  Wigmore  to  illustrate  the  ])ropo- 
sition  that  the  evidence  must  be  of  reputation  and  not  of  in- 
dividual assertion,  is  as  follows: 

^M837,  Denman,  Ld.  C.  J.,  in  li.  v.  Bliss,  7 A.  & E.,  550 
(rejecting  testimony  that  IT,  now  deceased,  had  planted  a 
willow  in  a certain  s])ot  to  show  whei'e  the  boundary  had 
been  of  a way  alleged  to  be  pul)lic)  : MIe  does  not  assert  that 
lie  has  heard  old  people  say  what  was  the  public  road;  l)ut  he 
plants  a tree  and  asserts  that  the  boundary  of  the  road  is 
at  that  point.  It  is  the  mere  allegation  of  a fact  by  an  in- 
dividual. * * * That  is,  he  knew  it  to  be  so  from  what 

he  had  himself  observed,  and  not  from  reputation.^  ” (p. 

1936.) 

The  distinction  here  is  clear.  The  deceased  individual  there 
^Diad  planted  a willow  in  a certain  spot  to  show  where  the  bound- 
ary had  been.” 

There  was  no  evidence  of  repute  there. 


Ill  the  aliseiK'o  of  additional  evidonce  tliat  tlie  boundary  as  so 
niarkcal  was  tlie  reputed  boundary,  lliis  rule  was  clearly  correct. 
The  individual  had  an  interest  and  motive  in  plantiny  the  tree  to 
shoir  where  tlie  lioundary  was. 

In  the  case  at  liar  there  is  no  such  element.  Tlie  witnesses,  who 
testified  that  they  had  heard  the  old  men  get  together  and  tell 
over  and  over  again  of  the  salt  famine  and  the  boat  loads  of 
salt  brought  down  the  river  from  Cdiicago  were  testifying  to 
repute.  They  were  not  telling  of  an  act  done  by  an  individual, 
with  a motive  to  establish  a boundary  or  highway.  In  the  lan- 
guage of  Mr.  AYigmore: 

‘‘Though  in  form  the  information  may  he  merely  ivhat  de- 
ceased persons  have  been  heard  to  say,  yet  in  effect  it  came 
from  them  as  a statement  of  the  reputation.” 

All  reputation  in  the  end  is  made  up  of  the  statements  of  in- 
dividuals. How  many  individuals  and  how  many  times  the  tell- 
ing must  be  repeated  before  it  becomes  reputation  is  a matter  in 
which  each  case  must  be  judged  by  its  own  circumstances.  We 
submit  that  the  rule  is  not  that  the  witness  must  always  put  his 
answer  into  the  words:  “I  am  acquainted  with  the  current  repu- 
tation of  this  question  as  it  existed  60  years  ago;  that  current 
reputation  was  that  the  stream  was  navigable.” 

While  such  a statement  as  that  if  it  came  in  such  form  as  to 
be  the  natural  language  of  the  witness,  would  be  entitled  to  great 
probative  force,  yet  words  in  precisely  that  form,  and  only  in  that 
form,  coming  from  the  mouths  of  several  unlettered  men  would 
have  less  |)robative  force  than  the  statements  of  the  witnesses  who 
say  they  heard  the  old  men  get  together  and  tell  the  story  over 
and  over  again.  The  question  is  one  not  of  the  form  in  which  the 
narrative  comes,  but  of  its  effect.  Is  it  in  effect  a statement  of 
repute?  If  so,  it  is  competent. 

The  court  was  conscious  of  this  distinction  and  endeavored  to 
apply  it  accurately  and  impartially,  l)ut  not  always  with  entire 
success.  In  short  the  court  erred. 

An  instance  of  the  distinction  between  form  and  effect,  or  s\d)- 
stance,  appears  in  the  deposition  of  Mrs.  Eliza  flones.  (Abstract, 
pjn  462-3,  ruling  1229-1230.) 


877 


TIu're  the  witness  w^as  asked: 

“I  will  ask  you  to  state,  Mrs.  Jones,  whether  you  have 
lieard  from  your  fattier  and  others  tlie  current  re[)utation 
and  the  liistory  of  tlie  early  days  of  tlie  Des  Plaines  River,  in 
the  matter  of  shipihng  or  traveling  upon  it?” 

The  ruling: 

‘‘The  Court:  The  question  was  all  right,  hut  that  is  an 
instance  where  the  ansv/er  was  not  as  good  as  the  question. 

“Well,  I have  heard  my  father  say  many  times  that  sup- 
plies were  brought  up  from  the  south,  up  as  far  as  Lockport, 
or  up  to  here,  up  the  river.  As  to  merchandise  being  brought 
down  the  river  from  Chicago,  there  is  only  one  thing  that  I 
remember  particularly  of  his  speaking  of  often,  and  that  was 
that  some  man  cornered  coarse  salt  in  Chicago,  and  tliat  all 
the  way  they  were  able  to  get  it  was  down  the  river,  and  it 
cost  them  $10.00  per  barrel.  I have  heard  them  say  that 
many  times;  and  afterwards,  my  father  and  an  old  neighbor, 
Mr.  Frederick  Collins, — the  two  old  gentlemen,  used  to  sit 
and  talk  old  times  and  these  things  I have  heard  over  and 
over  again.  He  said  it  was  $10.00  a liarrel ; the  neighbors 
had  to  divide  up  a barrel,  it  was  so  expensive.” 

The  substance  and  the  effect  of  this  was  the  giving  of  common 
repute,  and  that  n'as  ndiat  the  question  called  for.  The  court 
struck  it  out  as  hearsay.  Now,  all  common  repute  is  hearsay. 
The  very  evidence  of  the  reputation  rule  is  that  it  is  a form  of 
hearsay,  or  of  repeated  statements.  Hearsay  of  repute  from  the 
necessity  of  the  case  in  matters  of  this  kind  is  competent. 

From  the  other  citations,  and  from  Mr.  AVigmore’s  treatise, 
it  is  perfectly  apparent  that  i}i  the  United  States,  the  idea  that 
reputation  could  not  be  received  on  local  matters,  had  long  been 
repudiated.  McKinnon  v.  Bliss  is  contrary  to  the  great  weight  of 
authority  on  this,  and  in  so  holding,  the  court  was  s]making  aca- 
demically on  a question  not  before  the  couid. 

Again,  there  was  no  showing  there  that  Benton  veas  dead. 

AVe  affirmatively  ])roved  that  AVoodruff,  the  author  of  “A  His- 
tory of  AVill  County”  was  dead. 

The  most  important  ])oint  to  which  AVoodruff ’s  history  was 
cited  was  his  proof  of  tlie  ])ui!ding  of  the  Beard’s  Dam  in  ISJf), 
and  its  being  washed  out  the  follo^ving  spring.  (Abst.,  pp.  ) 

This  was  an  event  of  gi'eat  notoriety.  AVoodi'uff  had  ])een  re- 


878 


(•order  oi*  the  county  and  one  of  its  earliest  residents,  and  had 
lectured  upon  the  early  history  of  tlie  county  l)efore  the  Will 
('ounty  Historical  Society  in  a public  meeting  in  the  church,  to  an 
audience  of  several  hundred  people,  and  then  the  lectures  were 
published  in  the  newspapers,  and  repul)lished  in  the  Joliet  City 
Directory,— the  only  directory  of  the  time  which  remained  in 
general  circulation  for  several  years;  and  finally  Mr.  Woodruff 
wrote  his  history  of  the  county.  These  were  guarantees  of  trust- 
worthiness and  public  notoriety,  l)ot]i  of  the  event  and  of  his  ac- 
count of  the  event. 

What  is  tlie  account  offered  by  the  defendant  as  to  the  erection 
of  this  dam?  Simply  the  statement  by  the  witness  Enos  Field 
that  must  have  been  put  in  in  1833.  They  have  a nephew  in 
Michigan.  He  was  telling  me  about  this.  There  was  nothing  but 
a flume  when  I commenced  boating  in  ’54.”  (Abst.,  pp.  599-600.) 

This  statement  for  the  defense  was  received  but  the  statement 
of  the  historian  for  the  State  was  excluded. 

Much  similar  talk  was  given  for  the  defense,  tending  to  create 
the  impression  that  Beard’s  Dam  had  been  a permanent  struc- 
ture remaining  there  for  a long  time,  whereas  it  was,  as  the  evi- 
dence elsewhere  showed,  a most  crude  affair,  by  scraping  together 
boulders  in  the  bottom  of  the  stream  and  piling  logs  and  stone  in 
alternate  layers  thereon,  supposed  to  stop  the  flow,  and  of  a char- 
acter most  readily  washed  out,  as  the  historian  described.  (See 
description  by  Cornelius  of  the  Beard  Dam.  Abst.,  pp.  1042-3 
and  by  Mills  of  the  Treat’s  Island  Dam  of  1837,  Abst.,  p.  1036.) 

The  other  important  item  in  Woodruff’s  history,  is  the  descrip- 
tion of  the  use  of  the  stream  for  navigation,  that : 

‘A\s  early  as  1834,  the  products  of  the  farm  were  boated 
down  the  Kankakee  to  the  Des  Plaines,  and  up  the  latter  river 
to  Chicago.  It  is  related  that  during  the  year  named  some 
parties  loaded  a boat  on  Sugar  Creek,  a tributary  to  the  Iro- 
quois, with  300  bushels  of  oats,  300  bushels  of  wheat  and  some 
hams,  with  the  design  of  taking  them  to  Chicago  to  supply 
the  garrison  stations  there.  The  trip  down  the  Kankakee 
was  accomplished  without  accident  or  unusual  trouble;  but 
after  entering  the  Des  Plaines,  when  near  Treat’s  Island,  the 
boat  dipped  water  and  so  dampened  the  grain  that  they  were 
obliged  to  unload  and  try  to  dispose  of  their  produce  at  that 


879 


l)()'ml.  At  iliat  tiiiio  seillei’s  were  arriving’  in  that  rioi^»lif)oi‘- 
lu)()(l  (juitn  rapidly,  and  tlioy  had  no  Iroiible  in  disf)()sing  of 
tiled r whole  eargo — the  oats  at  50  and  tlie  wlieat  at  75  eents 
])er  bushel.”  (Woodruff’s  ^Mlistory  of  AVill  (5)nnty,”  p 
607.) 

It  was  of  this  instance  tliat  the  witness  Heed  testified  that  liis 
brother  brought  home  some  of  tliat  wheat  and  they  spread  it  out 
on  sheets  and  quilts  to  dry  (Al)st.,  p.  158)  ; and  that  the  witness 
H.  H.  Spoor  testified: 

remember  hearing  of  the  circumstances.  It  was  current 
report  by  men  that  I believe  to  be  truthful  and  had  no  inter- 
est in  it  other  than  that.”  (Abst.,  p.  419.) 

So  the  statements  of  Bowers,  with  regard  to  the  two  boats  in 
1849-50,  loaded  with  household  goods : 

‘AVe  heard  that  they  came  from  Chicago  and  were  going 
down  to  New  Orleans  and  then  to  California;  that  was  what 
the  report  was.”  (Abst.,  pp.  421-1224.) 

So  as  to  the  testimony  of  AVightman,  when  asked  to  state 

‘^The  current  report  and  local  reputation  as  to  the  use  of 
the  river  in  the  early  days  for  the  rafting  of  timber?” 

He  said: 

heard  my  mother  tell  several  times  about  the  rafts  of 
logs  going  down  the  river  in  the  early  days,  * * * .^nd 

the  men  having  little  shacks  for  houses  on  the  raft.”  (Abst., 
p.  26.) 

This  was  stricken  out  by  the  court. 

So,  Kaymond’s  conversation  with  the  Indian  chief  Shabbona, 
in  which  Shabbona  told  him  that  the  Indians  used  the  river  both 
ways,  but  the  white  men  went  down  stream,  Init  not  up  stream. 
(Abst.,  p.  434.) 

So  the  statement  of  Belz: 

‘^Mr.  Lappin,  an  old  fisherman  here,  told  me  they  unloaded 
the  boats  down  here  and  took  the  teams  and  hauled  them 
down  the  river  below  the  dams  and  loaded  them  u])  again. 
That  was  when  I was  a voung  man.  Mr.  Lappin  is  dead.’^ 
(Abst.,  pp.  441-1227.) 

was  excluded. 

So,  in  the  deposition  of  Brockway : 

‘‘My  father  came  here  25  years  before  I was  born.  My 


880 


fatlior  told  iii(‘  about  taking*  a flat  boat  down  the  river  to 
Peoria  from  do1i(‘t.”  (Abst.,  ]).  458.) 

was  (‘xe hided. 

Tlien  the  testimony  of  Mi's.  dones,  Mr.  Jones  and  Mr.  Paddock: 

“Tliat  they  had  lieard  old  Mr.  Paddock  and  old  Mr.  Fred 
Collins  talk  togetlier  over  and  over  again  of  the  time  when 
there  was  a ('orner  in  salt,  and  salt  was  lironght  down  the 
river  l)y  ])oat  and  distriliiited  at  $10.00  per  barrel  to  the  dif- 
ferent towns.”  (Abst..  pp.  462,  3,  5,  9.) 

8o  in  the  de])osition  of  Mh  W.  Stevens,  the  statement  made  to 
liini  by  tlie  Jessn])s  tliat  tliey  brought  lumber  down  the  Kanka- 
kee and  up  the  Des  Plaines.  (Abst.,  pp.  408-1234;  415-16,  1236-7.) 

And  the  statement  of  Fish  to  him  that  he  had  brought  whiskey 
down  tlie  river  on  boats.  (Abst.,  p.  1237.) 

Again,  in  describing  the  boats  he  was  asked  as  to  the  descrip- 
tion of  tlie  boats,  and  who  had  described  them,  and  the  witness 
answered  : 

‘‘Mackinaw  boats.  I have  seen  a great  many  of  them.” 

This  (oisirer  iras  sfricJcen  out.  (Abst.,  ]>.  1238.) 

The  court  also  struck  out  ‘‘Illinois  in  1837”  (Abst.,  pp.  956, 
960).  This  l)ook  on  the  river  was  produced  by  the  wdtness  Hey- 
decker  (Abst.,  p.  207).  It  was  a book  printed  in  Philadelphia. 
The  preface  states  that  it  had  been  compiled  from  Pecks’  Gazet- 
teer of  Illinois  (which  was  elsewhere  in  evidence),  from  Beck’s 
Gazetteer  of  Illinois  and  Missouri  (which  was  elsewhere  in  evi- 
dence), from  Schoolcraft’s  Travels,  and  the  works  of  Darby,  Hall, 
Long,  etc.,  and  from  the  Peoria  Kegister  and  Xorth-Western 
Gazetteer. 

The  accompanying  map  of  Illinois  is,  for  its  scale,  probably  tlie 
most  complete  yet  published.  The  book  was  copyrighted  and 
published  by  Mitchell  in  Philadelphia. 

Frederick  H.  Hild,  librarian  of  the  Public  Inbrary  of  Chicago 
for  21  years,  and  employed  as  librarian  ever  since  1874,  testified 
(AJist.,  pp.  640-642),  and  on  critical  cross-examination  said: 

“I  regard  it  as  a standard  authority  in  this  way,  that  it 
explains  conditions  as  existed  at  that  time.  That  was  one 
of  the  best  authorities  or  sources  of  information  that  people 
had  at  that  time. 


881 


Alvord  said  of  llio  same  hook: 

“This  is  a hook  that  was  ])Tiiit(Hl  to  a d(‘sorif)tion  of 

Illinois  for  tho  ])nr})ose  of  eiicoiirag'in^  iinniigration  into  tho 
State  in  1887.  ddie  liistorians  I’Ogard  this  hook  as  cont(3nrf)o- 
rary  evidence  for  facts  as  are  stated  in  it.  It  does  contain 
accounts  of  tlie  various  rivers,  etc.,  and  tlie  liistorian  would 
regard  sncli  statements  as  antlioritative  statements  of  con- 
temporary men  and  knowledge.  It  is  an  accurate  and  reli- 
able hook  for  matters  of  fact  that  are  therein  stated.’’ 

On  cross-examination,  he  said: 

“That  he  had  known  the  hook  for  a year,  had  used  it,  had 
conferred  about  it  with  a graduate  student,  who  had  been  re- 
ferred to  it  by  his  colleague,  Professor  Green  of  the  Univers- 
ity of  Illinois,  had  seen  it  cited  in  Hurlbut’s  Ohio,  and  had  con- 
ferred with  Prof.  Sparks  of  the  University  of  Chicago  upon 
it,  and  had  compared  it  with  other  historical  works  in  regard 
to  the  Des  Plaines  Piver.  ” (Ahst.,  pp.  719-21.) 

The  court  admitted  it  in  evidence  (Ahst.,  p.  722),  and  struck  it 
out  (Ahst.,  p.  960). 

It  was  quoted  from,  both  in  the  testimony  of  Heydecker  and 
of  Alvord.  (Ahst.,  pp.  208,  722.) 

The  work  said  with  regard  to  tliis  river: 

“ Ut  is  only  necessary  to  look  on  tlie  nia})  of  this  great 
state,  to  see  what  astonishing  advantages  for  inland  naviga- 
tion nature  lias  given  it.  On  its  northern  borders  it  has  for 
some  distance  the  waters  of  Lake  Michigan  and  tlie  various 
streams  that  empty  into  it;  and  by  this  vast  body  of  waters  a 
communication  is  opened  with  the  northern  ]iarts  of  Indiana 
and  Ohio,  with  New  York  and  Canada.  On  the  northwest 
frontier  it  has  liock  Iviver,  a long  beautiful  and  boatable 
tributary  of  the  Mississi]q)i.  On  the  whole  western  front  it 
is  washed  by  the  Mississipjh,  and  on  its  southern  by  the 
Ohio.  On  the  east  it  is  bounded  by  the  Wabash.  Through 
its  center  winds  in  one  direction  the  Illinois,  connecting  the 
Mississippi  with  I^ake  Michigan  by  the  Des  Plaines  and  by 
the  Chicago  Pivers:  and  in  a.nother  direction  the  beautiful 
Kaskaskia  flows  through  the  state.  Besides  these  there  are 
great  numbers  of  boatalile  streams  ])enetrating  the  state  in 
every  direction.  Such  is  the  intersection  of  Illinois  by  these 
waters,  that  no  settlement,  in  it  is  far  from  a point  of  boat- 
able  communication,  whether  with  Lake  Michigan,  the  Miss- 
issippi, the  Ohio  or  the  Illinois.”  (Ahst.,  pp.  208-209.) 
****** 

“ ‘The  Desplaines  river  is  the  northern  head  branch  of  the 
Illinois.  It  rises  in  Wisconsin  territory,  a few  miles  west  of 


the  town  of  Jiaeine,  on  Lake  Michigan,  and  flowing  through 
the  north  part  of  the  state,  it  joins  the  Kankakee  at  the 
honndary  line  l)etween  LaKSalle  and  Will  Counties,  where  they 
form  the  Illinois  river.  The  Desplaines,  in  its  course  of  150 
miles,  runs  generally  over  a ])ed  of  limestone.  The  country 
Tilong  its  hoi'ders  is  ])opulating  rapidly,  notwitlistanding  the 
appai'ent  deficiency  of  timber.  About  forty-two  miles  above 
the  mouth  of  this  stream  is  a swamp  connecting  it  with  the 
Chicago  river,  througli  wliich  boats  of  some  burden  have 
often  been  navigated  into  Lake  Michigan.  This  route  was 
used  by  the  traders  as  a medium  of  communication  between 
the  great  lakes  and  the  Mississippi,  from  the  first  discovery 
of  the  country  by  Euro])eans; — tlie  circumstance  first  sug- 
gested the  idea  of  an  artificial  connection  by  means  of  a canal 
at  this  point.’  ” (Abst.,  pp.  209-210.) 

The  exclusion  of  this  work  was  error. 


What  Eeputatton  Evidence  WAs  Retained. 

As  we  have  seen,  the  court  endeavored  to  apply  the  reputation 
rule  accurately  and  impartially.  What  did  the  court  retain  in 
evidence  under  this  rule? 

The  Jesuit  Relations,  giving  the  narratives  of  Marquette  and 
Joliet  (and  the  same  in  Breese’s  Early  History  of  Illinois),  Dab- 
Ion’s  Narrative,  the  maps  by  Marquette  and  Joliet,  Hugh  He- 
ward’s  Journal,  Gov.  St.  Clair’s  Report,  Imlay’s  Topographical 
Description,  the  Treaty  of  Greenville,  ^^The  Navigator,”  the  Pot- 
tawattami  Treaty,  Major  Long’s  Report,  Dana’s  Description  of 
Roads  and  Routes,  Major  Long’s  Expedition,  Narrative  by  Keat- 
ing, Beck’s  Gazetteer,  Hamlin’s  Traffic  between  Peoria  and  Chi- 
cago, narrated  in  Drown ’s  ^‘Historical  View  of  Peoria”;  U.  S. 
Report  of  the  18th  Congress,  1825,  that  it  is  a matter  of  historical 
notoriety  that  repeated  passages  have  been  made  by  nninterrupted 
navigation  from  the  river  into  the  lake;  Parkman’s  account,  Win- 
sor’s  “NaratWe  and  Critical  History”,  Schoolcraft’s  Expedition, 
Murray’s  Encyclopedia  of  Geography,  Smith’s  History  of  Wis- 
consin, and  the  decision  in  the  Montello  case,  20  AYall.,  giving  a 
narralive  of  facts. 

In  addition  to  this  the  court  ruled  that  the  evidence  should 
stand  and  be  retained  which  was  given  by  Spoor, — that  it  was  the 
ciiri'ent  report  that  a boat  came  up  the  Des  Plaines  River  carry- 


88:j 


ini>-  whoat  and  dippcnl  water  at  d''reat’s  Island  (Absi.,  [).  419,  rul- 
ing* til.,  l‘Jl^d). 

Also,  tlu'  statement  of  Bowers: 

l have  heard  the  folks  down  there  talking  about  a l)oat 
ihat  ea))sized  and  drowned  some  men  at  the  aqueduet.  Jt 
was  a kind  of  flat  borA  or  raft  they  had  for  fetching  stone  for 
the  piers  for  building  the  aqiiednct.  I liave  always  under- 
stood that  the  way  tlie  boat  came  to  sink  a yoke  of  cattle  on  it 
backed  up  to  the  hind  end  of  the  boat  and  sunk  it.”  (Abst., 
}).  422,  ruling  1224.) 

Also  the  statement  of  Hicks  in  response  to  the  question: 
ask  yon  if  yon  were  acquainted  with  its  local  reputation,  from 
what  you  have  been  informed  by  others'?” 

‘‘A.  Yes,  sir,  because  I have  been  making  inquiries  about 
the  stream,  in  hopes  that  some  time  it  would  be  a ship  canal, 
and  then  I would  have  some  of  my  business  to  do  on  it;  that 
is  the  reason.  It  was  the  general  talk  around  the  boat  yards 
when  I came  here,  about  having  this  for  a ship  canal.” 
(Abst.,  p.  436.) 

The  statement  of  the  witness  on  cross-examination  stood. 

have  heard  that  the  trappers  used  to  be  up  around  here: 
I have  heard  others  state  that  a good  many  years  ago.  The 
local  reputation  about  these  trappers  with  the  batteaux  was 
that  they  were  sent  out  by  the  American  Hur  Company.” 
(Abst.,  p]).  438-9.) 

The  same  witness  said  (Abst.,  p.  438)  : 

^Ht  was  always  considered  that  the  middle  of  the  river  was 
a navigable  stream  and  l)elonged  to  the  government,  and 
they  were  not  allowed  to  put  fences  across  the  river.”  {id.) 

Erhard  said  the  same  thing  and  explained  that  Adler  was  re- 
quired to  and  did  put  a gate  in  his  fence  to  ])ermit  the  ])assage  of 
boats  and  rafts.  (Abst.,  ]).  163.)  The  statement  of  Bai-rent  was 
allowed  to  stand.  (Abst.,  ]).  452,  ruling  ]>.  1227.) 

‘^That  he  was  ])ersonally  familiar  with  the  river  and  used! 
it  continuously  since  1853,  and  it  was  navigable  for  ordinary 
boats  drawing  from  2 fo  4 feet  of  water,  from  the  head  of 
Lake  Joliet  to  the  mouth  of  the  river,  for  at  least  six  months 
of  the  year,  and  all  the  year  except  at  the  rapids  at  Treat’s 
Island,  which  were  a])ont  100 'yards  long;  and  that  ])oats  with 
light  ca])acity  could  go  down  these  rapids  for  six  months  in 
the  year.  He  also  descrjbed  the  Davidson’s  Road  and  land- 
ing place,  and  the  general  repute  that  the  road  was  used  for 
hauling  stone  down  to  the  lake  and  loading  on  to  boats.” 


884 


This  latter  was  (lescril)e(l  in  detail  in  tlie  deposition  of  Brock- 
way, inclnding  the  proof  tliat  derricks  and  machinery  were  hauled 
down  by  water  from  the  Davidson’s  ({uarry  above  to  the  quarry 
sevei'al  miles  down  below.  (A])st.,  pp.  458-9;  1228.) 

The  statement  of  King  was  allowed  to  stand: 

‘‘I  have  heard  from  the  early  settlers  the  current  reputa- 
tion as  it  was  when  I was  a young  man  as  to  the  history  of  the 
early  use  of  the  river  back  in  the  period  before  there  was  a 
canal.  I saw  flat  boats  there  on  the  river  and  I asked  them 
what  they  used  them  for  and  they  told  me  they  used  them  si 
little  earlier  to  carry  provisions  on.  One  old  gentleman 'told 
me  there  was  a boat  of  grain  brought  there.  That  was  before 
my  time.  I saw  one  or  two  of  those  flat  boats  in  1872  and  1 
saw  some  of  them  later.  They  were  anchored  in  the  still 
Avide  water  above  Treat’s  Island.  They  were  12  or  14  feet- 
wide,  20  or  26  feet  long,  built  up  with  a flap  over  the  top.” 
(Abst.,  pp.  465-6.) 

So  the  evidence  of  Taylor  was  allowed  to  stand: 

saw  logs  come  down  the  river,  some  times  in  small  rafts, 
some  times  scattered.  Principally  before  the  canal  was  com- 
pleted. Used  to  see  them  frequently  in  the  river.  I was 
familiar  with  the  depth  of  the  riA^er.  Have  seen  it  in  all 
seasons  of  the  year  and  many  years.  I don’t  remember  that 
1 ever  saAV  the  river  at  a lower  stage  than  two  feet  at  its 
lowest  stage. 

I saw  eAudence  there  was  traffic  somewhere.  I know  of  the 
general  talk  or  reputation  in  the  neighborhood  as  to  the  navi- 
gability of  the  river.  It  was  generally  said  by  everybody 
and  the  old  inhabitants  as  being  a iiaAngable  stream.  They 
always  regarded  it  as  a navigable  stream.  This  was  long 
prior  to  the  opening  of  the  canal.  That  was  about  1848;  so 
that  it  AAms  generally  understood  in  the  community  that  it 
Avas  a naAugable  stream.  I was  better  acquainted  with  the 
river  before  the  canal  was  opened  than  after. 

I know  a man  Avas  drowned  in  the  lake  in  the  spring  of  the 
year  Avhile  he  was  cutting  wood  there.  There  was  good  heavy 
timber.  Cord-wood  was  piled  up  on  the  banks  of  the  river. 
The  wood  must  have  been  carried  away  in  boats.  It  was 
generally  said  by  the  people  here  at  that  early  date,  not  only 
they  considered  it  themseh^es,  but  the  government  considered 
it  a navigable  rUer.”  (Abst.,  pp.  488-490.) 

In  Heydecker’s  deposition,  the  statement  stood: 

heard  from  the  old  settlers  the  current  reymtation  as 
to  the  early  years  of  the  river  preAuous  to  the  time  when  1 
first  began  to  know  it.  It  was  claimed  by  some  of  the  old 


885 


sc'iilevs  lliat  tliey  came  up  the  river  when  they  came  into  the 
county  to  settle.”  (Abst.,  p.  20G.) 

The  statements  of  Stevens  were  retained  by  the  court,  wherein 
he  said: 

“1  am  acquainted  witli  the  current  reputation  and  com- 
mon report  as  to  the  early  history, — as  to  the  use  of  the  Des 
ITaines  iiiver  by  earty  settlers  and  explorers;  that  is,  the 
early  repuatation  and  common  report  when  I came  here.  I 
inquired  a great  deal.  I was  on  the  river  a great  deal  and 
talked  with  a great  many  of  the  early  settlers  in  regard  to  the 
use  that  was  made  of  the  river  before  the  opening  of  the 
canal.  The  current  reputation  was,  up  to  the  time  of  the 
opening  of  the  Illinois  and  Michigan  Canal,  that  the  river  was 
used  more  or  less  for  transportation,— certain  portions  of  it. 
I heard  of  the  lower  part  of  the  river  being  used  for  carrying 
lumber.  Parties  themselves  told  me  they  brought  lumber 
up.”  (Abst.,  p.  408,  ruling  1234.) 

As  to  the  road  from  Swalm's  Quarry,  his  answer  stood: 

^Mt  was  the  current  reputation  that  it  had  been  used  to 
haul  stone  from  Swalm^s  Quarry  down  to  the  river  and  there 
load  it  on  to  boats.  I first  saw  it  in  1856.”  (Abst.,  p.  410, 
ruling  p.  1235.) 

‘‘When  I first  came  here  in  1855,  I saw  the  end  of  an  old 
dam  on  the  Des  Plaines  Eiver  there  at  the  mouth.  I never 
heard  of  a dam  there  except  when  that  was  built  in  the  fall 
and  went  out  the  next  spring, — that  is  a historical  fact.  I 
never  could  find  out  that  there  was  any  dam  there  that 
amounted  to  anything,  and  lasted  long.  There  are  some  of 
the  boulders  of  the  foundation  there  still.  I have  seen  it 
many  times.  I don’t  recollect  much  about  it.  I recollect 
some  logs  sticking  in  the  bank  on  the  north  side  of  the  river 
and  some  boulders  lying  on  the  logs.  That  was  probably  fifty 
years  ago. 

* * * * * * 

* * * Jt  was  general  conversation  that  there  were  sev- 

eral months  in  each  year  it  was  impossible  to  get  from  here 
to  Chicago  with  a team.  There  were  no  bridges  across  the 
sloughs  and  flat  places,  and  they  could  not  get  to  Chicago 
with  a team,  except  when  the  water  was  low  and  the  ground 
was  dry.”  (Abst.,  p.  416,  ruling  1237.) 

This  reputation  evidence  which  the  court  retained  is  uncon- 
tradicted. It  is  in  itself  cogent  proof  of  navigability.  Eein- 
forced  by  the  other  evidence,  it  establishes  the  fact.  It  was 
argued  contra  that  the  fact  that  in  1834  the  l)oat  load  of  wheat 
dipped  water  at  Treat’s  Island  proved  that  the  river  was  not 


navigable.  By  the  same  token  eaeli  vvre(‘k  and  foundering  on  the 
lakes  or  ocean  i)rove  tliat  they  are  not  navigable. 

2.  Tile  court  erred  in  excluding  the  following: 

All*.  Cooley  was  asked,  ^‘ITow  would  the  stage  of  wuiter  in  a state 
of  nature  ])rior  to  these  artificial  obstructions  and  interferences 
compare  with  the  stage  of  water  in  the  19  recorded  years!”  (Abst., 
})p.  823-4.) 

The  court  excluded  the  testimony.. 

This  was  error.  It  prevented  the  court  from  ascertaining  the 
net  effect  of  the  several  depletions  of  the  stream. 

A month  later,  when  the  defense  was  putting  in  its  case,  and 
the  same  (piestion  was  asked  of  Air.  Cooley’s  Assistant,  Air.  T. 
T.  Johnston,  vAm  was  put  on  for  the  defense,  was  i^ermitted  to 
answer  the  question  and  gave  his  opinion  that  the  Des  Plaines 
Piver  was  helped  more  than  it  was  hurt  by  the  interferences. 

Of  course,  the  inconsistency  was  inadvertent. 

In  general,  it  reflects  a natural  condition  in  long  drawn  out  and 
elaborate  cases:— At  the  beginning,  the  court  is  not  familiar  witli 
the  case  and  goes  slowly,  and  rules,  critically  against  the  introduc- 
tion of  matters  with  which  it  is  not  familiar. 

Later  on,  after  the  complainant  has  completed  its  case,  the 
court  having  become  informed  as  to  the  scope  of  the  inquiry,  rules 
more  ffberally  and  receives  evidence  from  the  defense  upon  mat- 
ters wdiich  it  excluded  for  the  complainant. 

The  latter  ruling  would  not  be  incorrect  if  the  witness  showed 
a proper  acquaintance  and  foundation,  but  the  former  ruling  was 
certainly  incorrect. 

Johnston’s  testimony  as  to  the  comparison  was  in  itself  of  no 
value,  because  he  showed  no  acquaintance  with  the  several  ele- 
ments of  depletion  of  the  river,  the  only  one  of  which  he  was 
acquainted  being  that  of  the  Canal  itself,  and  his  answ^er  was : 

‘‘The  quantity  of  water  fed  through  the  canal  due  to 
the  deep  cut  wa^s  in  excess  of  that  which  could  have  been 
due  to  the  loss,  to  which  I have  testified.”  (Abst.,  p.  1399.) 

As  the  witness  had  not  testified  as  to  the  effect  of  (1)  the 
State  Ditch;  (2)  the  Cook  County  Drainage  Commissioner’s  Ditch 
of  1852;  (3)  the  Ogden-AYentworth-Nickerson  Ditch;  (4)  tbe 


r 


887 

Ogdon  Dam;  (5)  tlie  river  diversion  of  the  Sanitary  District;  (0) 
inhabitation,  tillage,  drainage  and  reclamation  of  swamp  lands, 
including  the  draining  away  of  Mud  Lake,  the  Sanganashkee 
Swamp;  (7)  north  to  tlie  Upper  Feeder  of  the  river  into  the  canal 
at  Summit,  north  to  (8)  percolation  from  the  river  into  the  canal 
below,  which  defendant’s  own  witness  Wheeler  had  stated  was 
graet,  he  having  confined  his  testimony  to  the  small  feeder  that 
he  saw  at  Lockport,  to  which  Mr.  Cooley  had  referred.  (Abst., 
pp.  823-8.) 

It  will  be  seen  that  liis  opinion  on  the  subject  was  without 
value,  and  again  it  will  be  seen  that  his  information  with  refer- 
ence to  the  subject  as  to  the  whole  and  his  possible  knowledge 
as  to  the  natural  condition  of  the  river,  was  indefinitely  less 
than  that  of  Mr.  Cooley;  but  his  opinion  was  received,  and  ?\[r. 
Cooley’s  was  excluded. 

Johnston  testified  (Abst.,  pp.  1405,  8),  about  his  extended  ca- 
reer as  an  expert  witness. 

3.  Complainant  offered  in  evidence  Complainant’s  Exhibit  2. 
(Abst.,  931,  et  seq.) 

This  was  a po^e  line  lease  by  the  Canal  ( Ammissioners  to  the 
defendant,  the  Economy  Light  k Power  Com})any,  dated  Decem- 
ber 5,  1901,  granting  that  company  the  right  to  maintain  a line 
of  poles,  wires  and  electric  current  u])on  the  tow-path  of  the  canal, 
from  Joliet  to  Chicago,  a distance  of  about  40  miles,  for  a term 
ending  July  17,  1910.  The  consideration  was  the  use  of  125  horse- 
power, together  with  electric  light  at  the  locks  and  canal  stations, 
to  be  taken  from  the  line,  or  poles. 

This  lease,  together  with  the  other  pole  line  lease  (Exhil)it  K). 
given  to  Griswold  and  by  him  assigned  to  Munroe  and  then  to 
the  defendant,  gave  to  the  defendant  in  all  the  control  of  about  65 
miles  of  the  low-])ath,  out  of  the  total  of  102  miles.  This  the 
court  excluded. 

But  when  the  defendant  came  to  put  in  its  evidence,  the  court 
received  on  its  offer,  in  one  ])lace,  32  leases  of  the  90-foot  strip 
and  tow-path  by  the  Canal  Commissioners  to  strangers  (Abst.,  p. 
1165)  ; a list  of  24  such  leases  of  the  90-foot  strip  in  another  place 
(Abst.,  p]).  1577-8) ; a list  of  three  such  leases  of  the  90-foot  strip 


in  nnolher  place  (Ahst.,  ]).  1580),  and  a list  of  53  such  leases  of 
tlie  OO-foot  stii])  in  another  ])iace  (Al)st.,  p]).  158-192). 

The  tlieoi'v  of  the  defendant  wliicdi  the  court  inadvertently 
adopted  was  that  dealings  of  the  Canal  Commissioners  with  the 
defendant  itself  were  irrelevant — were  res  inter  alios; — but  deal- 
ings of  tlie  (huial  Commissioners  with  strangers,  about  the  same 
subject,  were  competent. 

AVe  sulunit  that  this  was  error. 

The  defendant  objected  to  tlie  admission  of  evidence  which 
would  show  that  it  had  jiractically  acquired  control  of  65  miles  of 
tow-path  because,  as  was  suggested,  it  might  give  rise  to  un- 
favorable inferences. 

The  theory  on  which  the  defendant  offered  the  112  leases  by 
the  Canal  Commissioners  to  strangers  was  that  it  tended  to  show 
a course  of  dealing  by  the  Public  Canal  Commissioners  with  the 
public  property  in  the  same  way  that  it  dealt  with  the  particular 
public  property  here  involved. 

If  that  were  correct,  still  more  did  the  leasing  of  40  miles  of 
tow-path  east  of  Joliet,  show  a similar  course  of  dealing  with  that 
involved  in  leasing  25  miles  of  the  tow-path  west  of  Joliet.  The 
two  rulings  cannot  both  be  sustained. 

But  it  was  said  that  the  two  leases  to  the  defendant  related  to 
the  tow-path,  while  the  112  leases  to  strangers  related  to  the  90- 
foot  strip,  and  defendant  sought  to  distinguish  the  two  rulings  by 
this  means. 

TJie  distinction  is  not  good. 

The  tow-path  itself  is  a strip  lengthwise  of  the  canal,  occupying 
from  12  to  16  feet  of  the  90-foot  strip.  The  lease  of  the  tow-path 
is  a lease  of  a part  of  the  90-foot  strip,  and  the  other  leases  were 
leases  of  the  vdiole  of  the  90-foot  strip,  tow-path  included. 

The  objection  by  the  State  of  proof  that  the  defendant  had 
acquired  control  of  65  miles  of  tow-path  was  that  it  might  give 
rise  to  unfavorable  inferences. 

Unfavorable  to  whom?  Unfavorable  to  the  defendant,  and  to 
the  inconsiderate  action  of  the  Canal  Commissioners. 

We  submit  that  this  is  not  a good  legal  objection.  ^ 


88!) 


Many  of  those  oonvoyanoes  to  the  nerondant,  and  others,  have 
been  justified  l)y  the  suggestion  de  minimis  lex  non  curate  but  that 
is  no  sort  of  justification  and  the  evidence  offered  for  the  com- 
plainant was  cogent  to  show  that  what  the  defendant  was  getting 
was  no  trifle;  that  the  breach  of  public  trust,  inadvertently  com- 
mitted by  the  Canal  Commissioners,  Ijeginning  with  small  things, 
had  extended  to  a point  tliat  gave  the  defendant  alone  control, 
for  power  purposes,  of  two-thirds  of  the  tow-path.  The  evi- 
dence was  competent  to  show  thal;^the  public  rights  to  use  the  tow-- 
path were  gradually  being  absorbed  by  a private  corporation,  and 
appropriated  to  private  uses,  and  that,  in  the  aggregate,  the  in- 
jury to  the  State  wms  substantial  and  serious. 

The  State,  by  its  Information,  charged  that  this  lease  of  the 
tow-path  from  Joliet  fo  Morris,  was  unlawful.  (Abst.,  p.  18.) 
Bill  charges  making  of  the  contract,  ‘‘Exhibit  K. ” (Abst.,  pp. 
47-49.)  Exhibit  “K”  is  set  out.  (Abst.,  p.  26.)  Bill  charges 
that  said  pole  lease.  Exhibit  “K,”  w-as  subject  to  all  the  infirmi- 
ties heretofore  specifically  charged,  as  to  Exhibits  “A”  and 
“B,-”  and  wuis  for  an  inadequate  consideration.  Charges  so  ap- 
plied to  “K,’’  are,  that  it  was  “without  any  authority  and  against 
the  public  policy  of  the  State  and  in  derogation  of  the  rights  and 
interests  of  the  ])eople,  and  to  l)e  revocable  by  the  State.”  (Abst., 
p.  23.) 

Was  the  pole  line  lease  of  25  miles  of  the  tow-path  unlawful 
How  can  unlawfulness  of  an  admitted  act  be  shown? 

“By  showing  other  acts  and  offenses  of  a like  nature,  which 
tend  to  disclose  a common  purpose,  or  scheme  of  unlawfulness.” 

Brotvn  v.  U.  S.,  142  Fed.,  p.  1. 

People  V.  Molinemix,  168  K.  Y.,  264;  62  L.  11.  A.,  193. 

Alex.  V.  State,  56  Ga.,  478. 

To  the  objection  that  those  cases  are  criminal  cases,  we  reply 
that  the  rule  admitting  such  evidence  is  more  liberal  in  quality 
than  it  is  in  the  criminal  courts.  In  the  criminal  courts,  the  de- 
fendant is  guarded  by  the  presumption  of  innocence,  and  the 
wholesome  rule  that  the  defendant  charged  with  crime  No.  1 shall 
not  be  tried  for  committing  crime  No.  2. 

But  in  a civil  case,  in  equity,  to  set  aside  an  unlawful  contract. 


890 


tlie  fact  tliat  tlie  same  defendant  lias  ol)tained  anotlier  unlawful 
eontraet  for  another  ])art  of  the  same  public  property  to  be  oper- 
ated in  conjunction  wdtli  property  it  obtained  by  the  contract  at- 
tacked, is  cogent  to  show  the  unlawfulness  charged.  The  manner 
of  obtaining  and  disposing  of  other  property  is  always  admissible 
on  an  issue  of  the  fraudulent  and  unlawful  character  of  the  con- 
tract. 

Schroeder  v.  Walsh,  120  111.,  403. 

Gray  v.  St.  John,  35  111.,  222;  approved,  Lockivood  v. 
Doane,  107  111.,  235. 

Miller  v.  Bedell,  21  La.  Ann.,  573. 

5Ve  respectfully  submit  that  the  two  rulings  of  the  court  can- 
not both  be  sustained.  Error  certainly  occurred  in  admitting  112 
leases  to  strangers,  as  evidence  for  the  defendant,  and  excluding 
the  lease  of  40  miles  of  tow-path  to  the  defendant  itself. 

Eurther,  we  insist  that  the'error  was  twofold.  The  court  should 
have  received  in  evidence  the  lease  of  the  40  miles  of  the  tow- 
path  to  the  defendant,  itself,  and  it  should  not  have  received 
leases  of  112  odds  and  ends  of  different  pieces  of  the  90-foot  strip 
to  a lot  of  strangers.  Those  transactions  were  res  inter  alios, 
and  the  rule  should  be  applied  to  sucli  unlawful  transactions, 
which  is  applied  to  unlawful  obstructions  of  the  stream.  The  112 
unlawful  obstructions  of  the  stream  at  other  places,  by  other 
people,  by  unlawful  dams  and  bridges,  would  constitute  no  justifi- 
cation to  the  defendant  for  this  dam.  And  so  the  leasing  of '112 
odds  and  ends  of  parcels  of  the  90-foot  strip,  to  other  people  at 
other  times  and  in  different  places,  were  simply  so  many  other 
unlawful  acts  pleaded  as  a justification  for  this  unlawful  act,  and 
they  constitute  no  justification.  They  stand  on  the  same  footing 
as  tlie  attempt  in  cases  of  accident  to  prove  up  other  similar  acci- 
dents. These  are  inadmissible: 

Aurora  v.  Brown,  12  111.  App.,  122. 

Simmons  v.  New  Bedford  Steamboat  Co.,  97  Mass.,  361. 

Chicago  v.  Greer,  9 Wall.,  726. 

4.  The  court  erred  in  excluding  ComplainanEs  Exhibit  3 (Abst., 
p.  931c)  and  Complainant’s  Exhibit  4 (Abst.,  p.  931d),  which 
were  contracts  between  the  Canal  Commissioners  and  one  Eobert 


891. 


(ja)^lord,  whom  it  was  proved,  was  an  assoc'iale  of  Mun roe’s  in 
the  enterprise  covered  by  the  contracts,  [)roviding  for  the  build- 
ing of  a dam  at  the  head  of  Lake  tJoliet,  and  connecting  tiie  ])es 
riaines  Liver  with  the  Canal. 

The  contracts  were  made  October  3,  1902,  (Abst.,  pp  931d-h). 

The  contracts  v/ere  produced  and  testified  to  and  the  relations 
of  Munroe  to  Gaylord  were  testified  to  by  Superintendent  Mc- 
Donald, an  emx)loye  of  the  Canal  Commissioners.  (Abst.,  pp. 
269-271.) 

Mr.  Sackett  also  testified  that  Mr.  Munroe  negotiated  the  con- 
tracts which  stood  in  the  name  of  Gaylord.  (Abst.,  pp.  218-219.) 

These  negotiations  and  contracts  by  Munroe,  in  the  name  of 
Gaylord,  with  the  Canal  Commissioners  for  another  dam  two 
years  prior  to  the  one  in  question,  were  admissible  for  the  pur- 
pose of  showing  the  relations  of  Munroe  (through  whom  the  con- 
tracts in  question  were  acquired),  with  the  Canal  Commissioners 
from  whom  the  contracts  were  ultimately  acquired. 

5.  The  court  erred  in  excluding  Continental  Waterway  pro- 
file (Cooley  Exhibit  37.  Atlas,  p.  3975a).  This  was  excluded  at 
(Abst.,  p.  1188). 

Considerably  earlier  in  the  case  (Abst.,  pp.  812-13),  the  Cooley 
Consolidated  profile  of  the  Des  Plaines  River  (Cooley  Exhibit  3), 
was  produced  and  put  in  evidence.  (Abst.,  jjp.  812-13.) 

At  that  time,  the  following  occurred: 

‘‘Mr.  Cooley:  In  connection  with  this  profile  we  have  con- 
sulted every  record  that  has  been  made  that  was  accessible, 
and  all  the  profiles  that  have  been  platted  in  connection  Avith 
the  river. 

That  includes  all  of  these  volumes  of  gauge  readings  and 
reports  and  profiles  and  gauges  and  maps  to  which  1 have 
referred.  It  truly  and  correctly  depicts  these  ga.uge  read- 
ings according  to  the  accepted  method  of  depicting  them  by 
hydraulic  engineers. 

Thereupon  counsel  for  conq)hiinant  offered  in  evidence  the 
said  maps.  Counsel  for  defendant  objected  to  the  same  on 
the  ground  that  they  'Were  based  upon  records  not  in  evidence. 

The  Court:  Wedl,  if  ihcy  are  all  here  we  can  pass  on  that 
question  later.  I will  pass  on  that  later.  1 will  overrule  it 
at  this  time. 

Said  maps  were  then  received  in  evidence,  marked  “Cooley 


Exliihit  1^”  and  ‘'('ooley  Kxliihit  ‘r’  (Atlas,  pp.  3944  and 
3943;  Trans.,  pp.  6557-8;  Abst.,  p.  1923).  And  the  witness 
flirt! ler  testified: 

As  to  liow  many  pages  of  figures,  gauge  readings  and  sim- 
ilar matter  I have  consulted  in  the  preparation  of  this  profile, 
— the  tabulations  that  liave  been  gone  into  and  actually  used 
in  this  connection  amount  to  two  or  three  hundred  pages, 
aside  from  the  ma])s  and  profiles  of  tlie  surveys  that  liave 
been  made  since  1867.  The  number  of  maps  and  profiles  I 
have  consulted  and  made  use  of  in  compiling  this  profile  were 
eight  or  ten.”  (Abst.,  p.  813.) 


Counsel  for  defendant  objected  on  the  ground  that  they  were 
based  upon  records  not  in  evidence. 

^^The  Court:  Well,  if  they  are  all  here,  we  can  pass  on 
that  question  later.  1 will  overrule  it  at  this  time.” 

A little  later  in  the  same  day  (Abst.,  p.  823),  when  Mr.  Cooley’s 
tabulated  summary  of  gauge  readings  was  offered,  the  court  said  : 
— doubt  the  right  of  counsel  to  offer  the  summary  without  the 
original,  where  the  original  is  available,  and  the  other  side  ob- 
jects.” 


The  question  as  to  the  consolidated  profile,  which  was  a sum- 
mary of  several  maps,  and  the  tabulated  statement  of  gauge  read- 
ings, which  was  a summary  of  many  tables  of  figures,  was  sub- 
stantially the  same.  The  court  reserved  the  question  as  to  the 
first  and  a little  later  announced  his  position,  which  was  that  the 
originals  must  go  in  with  the  summaries. 

Thereupon,  the  State  caused  Mr.  Cooley  to  assemble  the  mul- 
titude of  maps  and  other  data  used  in  consolidating  the  profiles 
and  bring  them  in. 

This  Continental  Waterway  (Cooley  Exhibit  37)  was  one  of  the 
maps  and,  in  particular,  one  made  by  Mr.  Cooley  himself  several 
years  before,  showing,  in  detail,  the  slopes  of  the  Des  Plaines  and 
the  relation  of  the  Des  Plaines  Eiver  to  the  great  commercial 
cities  of  the  country  and  the  great  international  waterways.  It 
was  competent  beyond  question. 

Apparently,  the  court  excluded  it  (Abst.,  p.  1188)  because  it 
uvas  so  big  (about  20  feet  long),  for  it  was  brought  forward  in 
connection  with  the  whole  list  of  other  exhibits  by  Cooley  (Abst., 
pp.  1183-1185)  and  selected  out  for  exclusion. 


81):] 

AYe  liopo  that  tlie  court  will  detacli  this  Cooley  Kxliihit  :]7  froiti 
tlie  Atlas,  spread  it  out  and  tac'k  it  u})  on  tlie  wall,  as  was  done  in 
the  trial  court,  and  see  its  significance  in  passing  u})on  tliis  assign- 
ment of  error. 

In  connection  with  this,  it  sliould  l)e  observed  that  the  Profile 
Sheets  7 and  8,  House  Document  192,  54th  Congress,  in  the  re- 
port of  the  deep  waterway  commission,  were  received  in  evidence. 

This  deep  waterway  commission  consisted  of  James  B.  Angell 
of  Michigan,  John  E.  Eussell  of  Montreal  and  Lyman  E.  Cooley 
of  Chicago. 

Profile  Sheets  7 and  8 thereof  (Atlas,  pp.  3975a,  3976),  were  re- 
ceived in  evidence.  These  show  the  slopes  of  the  St.  Lawrence  at 
the  Lachine  and  Cornwall  Kapids  and  elsewhere,  to  be  greater 
than  those  of  the  Des  Plaines;  that  the  St.  Lawrence  is  navigable, 
the  world  knows;  and  the  Avitness  Burton,  Chairman  of  the  Eiver 
and  Harbor  Committee,  testified  in  particular  that  it  was  navi- 
gated down  stream,  but  not  up  stream,  the  boats  going  down  by 
the  St.  Lawrence  and  coining  back  up  by  a canal  along  side. 
(Abst.,  p.  192.) 

That  was  when  the  State  was  putting  its  case. 

6.  In  the  clean-up  of  details  at  the  end  of  the  case,  we  otfered 
to  show  by  Mr.  Cooley  that  the  maximum  flood  volume  of  the  Des 
Plaines  Eiver  at  this  point  when  the  Drainage  Channel  is  com- 
pleted, throughout  its  widest  part,  plus  the  high  water  flood  of 
nature,  would  aggregate  40,000  cubic  feet  per  minute.  The  court 
excluded  the  testimony.  (Abst.,  p.  1674.) 

7.  AYe  also  offered  to  show  that  the  period  of  navigation  on 
the  Illinois  and  Michigan  Canal  was  made  to  correspond  to  that 
on  the  Great  Lakes,  which  was  determined  by  the  conditions  af 
Macldnaw,  and  that  navigation  there  is  limited  by  ice  conditions 
and  winter  to  135  days  in  the  year,  and  that  the  period  of  winter 
interruptions  on  the  Des  Plaines  Eiver  liy  ice  from  60  to  70  days. 
The  court  excluded  the  testimony.  (Abst.,  p.  1674.) 

8.  Similarly  we  offered  to  prove  by  Mr.  Cooley  that  the  diffi- 
culties of  navigation  which  had  been  referred  to  by  Avitnesses 
for  the  defense  on  the  Des  Plaines  Eiver,  as  compared  with  the 
rivers  referred  to  by  the  witnesses  for  the  defense  and  reported  in 


894 


tlie  l^eports  of  tlie  United  States  Engineers,  were  less  than  the 
average  amount  of  difficulties  on  such  streams.  The  court  ex- 
cluded the  testimony.  (Abst.,  p.  1675.) 

9.  Again,  in  the  final  clean-up  of  details,  counsel  for  the 
State  offered  in  evidence  a certified  copy  of  the  lease  of  Dam  No. 
1,  with  the  assignment  of  the  same,  under  which  the  defendant 
claims  to  hold  it,  also  the  consent  decree  under  which  the  Dam 
No.  1 had  been  reconstructed,  showing  exactly  what  private 
rights,  if  any,  there  were  in  the  State  property  known  as  Dam  No. 
1,  and  showing  to  what  ex;tent,  if  at  all,  there  was  any  right  to 
maintain  any  private  right  to  the  maintenance  of  this  dam  across 
the  river.  The  court  excluded  the  testimony,  although  it  had 
admitted  evidence  from  several  witnesses  for  the  defense  to  the 
existence  of  several  old  dams  and  this  dam.  (Abst.,  p.  1876.) 


TIL 

THE  COURT  ERRED  IN  ADMTTTINCx  INCOMPETENT  EVIDENCE  OFFERED  ON 
BEHALF  OF  THE  DEFENDANT. 

The  court  received  in  evidence  on  the  offer  of  the  defendant  a 
multitude  of  documents  purporting  to  set  forth  acts  by  the  com- 
missioners of  the  Illinois  and  Michigan  Canal. 

1.  The  ^^Druley  v.  Adam^^  Documents. 

Among  these  were  a resolution,  that  ‘4t  became  equitably  and 
justly  incumbent  on  the  stale  to  assume  the  responsibility  of  such 
suit,” — meaning  thereby  the  suit  known  as  Driiley  v.  Adam. 

The  Canal  Commissioners  liad  assumed  to  lease  to  Druley  and 
Slater  some  water-power  created  by  the  extra  water  of  the  Deep 
Cut.  Adam  contended  that  if  there  was  any  surplus  over  and 
above  the  amount  necessary  to  feed  the  canal,  and  capable  of 
being  deputed  to  water-power  purposes, — the  water-power  result- 
ing therefrom  should  inure  to  him. 

He  sued  Druley  and  Slater  for  the  diversion  of  the  power.  This 
was  the  suit  which  the  Canal  Commissioners  resolved  in  1882, 


‘‘it  boc'aiiio  tMiiiilably  aiul  justly  iiuuiinixait  on  ili(3  stat(3  to  assurne 
the  responsibility  of.’^ 

Tlie  court  said,  “it  nu'.y  go  in  for  wliat  it  is  wortli’’  (Abst.,  [). 
Iddd).  Along  witii  it  went  the  voucher  of  the  j^lieriff,  paid  by  the 
Canal  Commissioners  for  tlie  judgment  and  costs  in  that  case 
(Abst.,  pp.  1339-41). 

Also  the  lawyer’s  bill  for  his  services  (Abst.,  p.  1342). 

Also  the  abstract  and  briefs  on  both  sides  in  the  Appellate  and 
Supreme  Courts,  and  petition  for  rehearing  in  the  Supreme  Court, 
in  that  case  (introduced  at  Abst.,  pp.  1419-1428;  abstracted  at  pp. 
1733-1853). 

(On  page  1344,  the  abstract  says: 

“Counsel  for  complainant  stated  that  he  further  offered 
it  as  a basis  of  showing  hereafter  the  position  taken  by  these 
people  as  to  the  condition  of  this  river  in  the  tiling  of  their 
briefs  in  the  Supreme  Court.” 

This  was  a misprint.  It  was  counsel  for  defendant  who  so 
stated.) 

Pages  1419-20,  counsel  for  defendant  said : 

“The  doctrine  under  which  we  claim  the  right  to  introduce 
him  is  that  as  to  matters  in  controversy  in  a law  suit,  state- 
ments or  admissions  made  by  a party  at  any  time,  at  any 
place,  are  competent;  and  that  is  especially  so  of  statements 
made  in  proceedings  of  record,  to  which  such  party  was  a 
party,  or  where  he  was  a real  party  in  interest.  The  intro- 
duction of  briefs — in  my  experience, — I have  known  it  a num- 
ber of  times  as  being  of  the  same  nature  as  ])leadings.  Plead- 
ings are  always  taken  up  as  admissible  against  a party.  We 
liave  established  in  tin's  case  that  while  the  nominal  party 
was  Mr.  Druley,  the  actual  party  was  the  State.  The  Canal 
Commissioners,  by  their  resolution,  said  it  was  their  duty  to 
assume,  the  State’s  duty  to  assume,  and  the  state  retained 
and  paid  the  attorney  who  appeared  in  the  case  for  Drnley 
and  Slater  and  paid  the  fees  in  that  case.  The  record  shows 
clearly  that  it  was  really  a suit  by  the  State.  The  rights  of 
the  State  or  what  was  contended  for  throughout  were  in  the 
briefs  of  both  parties.  It  is  upon  that  theory  that  we  claim 
they  are  admissible.”  (Abst.,  p.  1420.) 

The  court  adopted  this  theory  and  admitted  the  bound  volume 
of  briefs  in  evidence. 

We  respectfully  submit  that  this  was  error.  The  Canal  Com- 


iiiissioners  wore  not  the  State  oF  Tllinois.  The  assumption  on 
their  i)art  tliat  they  were  tlie  State  was  even  more  erroneous  than 
tliat  ol*  Louis  XIV  in  his  famous  ejaculation,  ‘‘I  am  the  State”. 

Tliey  were  statutory  officers,  witli  statutory  powers.  They  had 
no  implied  powers.  (See  Division  One,  points  T and  IT,  of  this 
hriei,  and  the  authorities  there  cited.) 

The  statement  of  counsel  for  the  defendant  was  mistaken  in  an- 
other tiling:  Tt  was  not  a suit  by  the  State,  and  it  was  not  a suit 
by  the  Canal  Commissioners,  and  it  was  not  a suit  by  the  lesese 
of  the  Canal  Commissioners.  Tt  was  a suit  against  the  lessee  of 
the  Canal  Commissioners. 

The  Canal  Commissioners  could  not  be  sued, 

(R.  St.,  Ch.  19,  Sec.  3) 

and  the  State  of  Tllinois  could  not  be  sued. 

(Constitution  of  1870,  Article  4,  Sec.  26.) 

^‘The  State  of  Illinois  shall  never  be  made  a defendant  in 
any  court  of  law  or  equity.” 

That  was  enforced  by  this  court  in: 

Moore  v.  School  Trustees,  19  111.,  83. 

People  V.  Dulaney,  96  111.,  503. 

In  re  City  of  Mi.  Vernon,  147  111.,  359. 

The  court  acted  hastily  and  was  doubtless  misled  by  the  lan- 
guage of  the  counsel  saying:  ‘‘The  record  shows  clearly  that  it 
was  really  a suit  by  the  state.” 

The  record  shows  no  such  thing.  It  shows  that  it  was  a suit 
by  Adam,  as  assignee  of  the  rights  of  the  Havens,  against  Druley 
and  Slater,  the  lessees  of  the  Commissioners. 

As  this  court  said  in  deciding  Druley  v.  Adam,  105  111.,  177,  179: 

“This  was  an  action  on  the  case  by  appellee  (Adam) 
against  appellant  (Druley)  for  diverting  tlie  water  in  the  Des 
Plaines  River  from  the  plaintiff’s  mill.” 

AVe  respectfully  submit  that  the  resolution  of  the  Canal  Com- 
missioners (Abst.,  p.  1343)  that  “it  became  equitably  and  justly 
incumbent  on  the  state  to  assume  the  responsil)ility  of  such  suit,” 
is  an  act  beyond  their  power. 

They  have  no  authority  to  violate  the  constitution.  They  have 


81)7 


lU)  autliorily  lo  (M'C'cI  th(aiisolves  into  lli(‘  ju(ji('ial  (h^partriKail  oT 
the  goveniineiit  and  adjudicate  a suit  ai>aiust  tlie  state,  and  make 
the  state  a defeudaut  to  a suit,  wlieu  tlie  eoustitiitiou  forhadci  that 
the  state  sliould  ever  he  made  sueli  a defeudaut. 


Again,  we  submit  that  it  ap])ears  from  that  very  abstract  that 
tlie  evidence  in  that  suit  was  the  evidence  of  an  agreed  case. 
From  the  abstract  in  this  case,  ]).  14-20,  it  appears  that  in  that 
case,  the  evidence  upon  which  the  same  was  decided  consisted  en- 
tirely of  a stipulation  between  Adam  on  one  side,  and  Druley  and 
Slater  on  the  other,  and  these  parties  there  stipulated  thus : 

‘‘Be  it  remembered,  etc.,  that  evidence  was  introduced 
which,  for  the  purposes  of  this  appeal,  it  is  stipulated  hy  and 
hetiveen  the  parties  established , the  following  facts.” 

Here  was  an  agreed  case  between  Adam,  who  sued  the  lessees 
of  the  Canal  Commissioners  on  the  one  hand,  and  those  lessees  on 
the  other.  Amd  then,  after  it  is  over,  the  Canal  Commissioners, 
themselves,  resolved  that  “it  became  equitably  and  justly  incunn 
bent  on  the  state  to  assume  the  responsibility  of  such  suit.” 

(That  case  ended  in  the  Supreme  Court  in  the  Alarch  term  1882, 
102  111.,  177;  and  the  resolution  was  passed  ^fay  10,  1882,  Abst., 
p.  1343.) 

The  ])ayment  of  the  judgment  and  costs  by  the  Commissioners 
was  done  after  the  suit  was  decided  here,  so  that  this  court  had 
no  knowledge  of  the  evasion  of  the  Constitution  which  was  ])rac- 
ticed.  It  did  not  occur  until  after  tlie  case  left  this  court. 


Again,  the  evideiu'e  stipulated  there,  was  '‘for  the  purposes 
of  this  appeal.”  We  respectfully  submit  that  the  stij^ulation  liy 
Druley  and  Slater  “for  Ihe  ])urposes  of  this  ap])eal”  do  not  bind 
the  State  of  Illinois  25  years  later  in  another  suit. 

A])parently  the  very  object  of  the  phrase  “for  the  purposes  of* 
this  appeal,”  was  that  Druley  and  Slater  might  limit  their  admis- 
sion for  the  juirposes  of  that  suit,  and  that  suit  only.  It  could 
not  be  extended  to  become  in  renn  an  admission  in  favor  of  all  the 
world  against  the  State  of  Illinois. 

Again,  the  object  of  the  resolution,  itself,  apparently  was  merely 
pecuniary,  to  reimburse  Druley  and  Slater  the  if*800  and  costs 
($956.38,  Abst.,  ]>.  13-10),  for  which  judgment  had  been  re(M)vered 
against  them  by  Adaiii.  The  resolution  in  full  is  as  follows: 


898 


‘SSnvdeu  Kx.  K]. 

COPY  OF  PREAMBLE  AND  RESOLUTION  ]N  REGARD  TO  PAYMENT  OF 
JUDCiMlCNT  AND  COSTS  IN  CASE  OF  ADAM  VS.  SLATER  & DRULEY, 
MAY  K)tij^  1882. 


On  Tvlotion  the  Following  was  Adopted: — 

AVhereas,  in  the  case  of  William  Adam  vs.  Robert  P.  Slater 

and  Win.  M.  Druley  brought  in  the  Circuit  Court  of  Will 

County  at  the  term  A.  D.  1878,  for  the  diversion  of 

the  water  of  the  Desplaines  River  from  the  mill  of  said  jilain- 
tiff  and  appealed  to  the  Appellate  Court,  in  which  court,  the 
judgment  of  said  court  Avas  reversed  and  a judgment  ren- 
dered in  favor  of  said  plaintiff  for  $800,  for  damages,  and 
costs  of  suit,  which  judgment  was  afterwards  affirmed  in  the 
Supreme  Court  on  appeal  thereto,  as  will  more  fully  appear 
by  reference  to  the  report  thereof  in  the  101st.  vol.  of  the 
reports  of  said  Supreme  Court  and 

Whereas  the  alleged  diversion  for  which  said  recovery 
was  had  was  of  water  supplied  to  said  Slater  and  Druley 
under  a lease  to  them  executed  by  this  Board  dated  July  11, 
1878,  whereby  it  hecame  equitably  and  justly  incumbent  on 
the  State  to  assume  the  responsibility  of  such  suit. 

Therefore  resolved,  That  the  said  judgment  and  costs  be 
paid  but  ivith  a vieu)  to  saving  the  future  rights  of  the  State, 
that  said  judgment  be  paid  under  protest.’^ 


There  is  no  suggestion  in  the  resolution  that  the  Canal  Commis- 
sioners, even  in  their  most  arrogant  usurpation,  assumed  to  com- 
mit the  state  ad  rem  and  in  rem  to  the  ‘ ^responsibility”  of  a 
covenant  running  with  the  land  in  favor  of  all  the  world  to  come, 
and  to  all  of  the  arguments  and  contentions  made  by  the  lawyer 
for  Druley  and  Slater  in  that  case. 

But  that  was  the  contention  and  theory  upon  which  they  were 
admitted. 

Indeed,  the  commissioners  intended  just  the  contrary.  They 
said  that  ''whereas  it  became  so  and  so,  therefore  resolved  that 
said  judgment  and  costs  be  paid;  but  ivith  a vieiv  of  saving  the 
future  rights  of  the  state,  that  said  judgment  be  paid  under  pro- 
test.^’ 


899 


The  iiitenlion  was  to  assume  peenniary  ‘^responsibility”  ot‘  the 
$95().9S,  adjudieated  against  their  lessees,  Drnley  and  Slater,  and 
reimburse  them  for  it;  and  carefully  guard  their  action  against 
any  other  responsibility. 

And  tlie  intention  of  Druley  and  Slater  was  to  stipulate  the  evi- 
dence in  that  case  “for  the  purposes  of  this  appeal”  only. 

But,  again,  the  thing  for  which  the  briefs  were  brought  forward 
and  put  in  under  the  erroneous  statement  that  “it  was  really  a 
suit  by  the  state,”  were  to  show  some  statements  by  the  lawyer 
for  Druley  and  Slater  in  his  brief,  such  as  the  following: 

“ ‘The  Des  Plaines  Elver  is  in  truth  a very  insignificant 
stream,  never  of  much  use  as  a feeder  in  the  season  when  its 
services  are  most  needed,  and,  except  as  reinforced  by  con- 
tributions of  the  Canal,  affording  sites  only  for  what  are 
sometimes  denominated  “thunder-shower  mills”.’  ” (Abst., 
p.  1425.) 

The  Des  Plaines  Eiver  was  not  much  of  a stream,  but  the  Trus- 
tees wanted  to  control  it  as  a feeder  for  whatever  it  was  worth, 
without  the  liability  of  incessant  law  suits.  (Abst.,  p.  1426.) 

We  respectfully  submit  that  these  statements  purport  to  be 
statements  of  fact ; that  they  are  made  in  a case  in  which  the  entire 
evidence  was  stipulated;  that  there  is  not  anything  in  the  entire 
stipulated  evidence  in  the  case  of  Bruley  v.  Adam  to  justify  any 
such  statements;  that  the  facts  and  evidence  in  the  case  of  Bruley 
V.  Adam  were  such,  and  only  such,  as  were  stipulated;  that  these 
expressions  and  comments  upon  the  evidence  in  that  case  had  no 
foundation  in  the  stipulated  evidence  in  that  case;  that  they  are 
stray  expressions  and  figures  of  speech  used  by  the  lawyer  in 
argument  and  are  no  evidence  of  an^dhing  either  in  that  case  or 
any  other. 

They  are  cases  of  mavericks  and  estrays,  where  counsel  jumped 
the  fence  and  strayed  from  the  path  of  the  record. 

The  entire  abstract  and  the  entire  brief  remain  in  evidence. 
(Abst.,  pp.  1733-1854.)  There  was  no  other  evidence.  These 
statements  cannot  be  referred  by  ])resumption  to  something  not 
now  preserved. 

Again,  the  theory,  upon  which  the  metaphors  of  G.  D.  A.  Parks, 
Druley ’s  lawyer,  are  said  now  to  conclude  the  State,  is  that  they 


were  admissions  wliicli  est()])|)ed  tlie  State  from  asserting  tlie 
Iriitli  about  the  river  in  so  far  as  the  truth  differs  from  Park’s 
metaphors. 

We  respectfully  submit  tliat  they  have  no  sucli  effect. 

‘Mn  order  to  create  an  estopi)el,  tlie  following  elements 
must  be  ])resent : 

(1)  There  must  have  been  a representation  concerning  the 
matei'ial  facts. 

(2)  The  re])resentation  must  have  been  made  with  the 
knowledge  of  the  facts. 

(o)  Idle  ])arty  to  whom  it  was  made  must  have  been  ig- 
norant of  the  truth  of  the  matter. 

(4)  Tt  must  have  been  made  with  the  intention  that  it 
would  1)0  acted  upon.” 

{People  V.  Brown,  Gl  111.,  485.) 

None  of  these  elements  are  present. 

The  verbal  admissions  of  tlie  counsel  made  in  the  trial  of  an- 
other cause  are  not  admissible  liy  way  of  estoppel. 

Kei/ser  v.  Piclxrell,  4 App.  Cas.  (D.  C.),  198. 

(The  same  criticisms  apply  to  the  admission  of  the  opinion  of 
Judge  McKoberts  in  that  case.  Abst.,  p.  1396.) 

Adam  is  a stranger  to  this  law  suit,  and  the  state  was  a stranger 
to  the  Adam  law  suit.  There  is  no  estoppel  against  the  state  here 
by  the  admission  of  one  stranger,  Druley,  to  another  stranger, 
Adam,  there. 

Bohinson  v.  Hawkins,  38  Yt.,  693. 

Moore  v.  Boyd,  74  Calk,  167. 

There  is  no  theory  on  which  an  agreed  statement  of  facts  is  ad- 
missible in  a suit  between  other  independent  parties,  merely  be- 
cause the  subsequent  suit  relates  to  the  same  parties. 

Elting  v.  Scott,  2 Johns.  (N.  Y.),  157. 

The  contention  of  defendant  is  that  Druley  and  Slater  were 
only  nominal  parties  and  that  the  Canal  Commissioners  (and 
therefore  the  state),  is  the  real  defendant  in  Druley  v.  Adam. 
This  is  wrong;  but  if  it  were  correct  it  would  not  aid  the  de- 


901 


Tlio  admissions  of  a nominal  (l(‘r(‘ndant  ai‘(‘  not  admissi})l(; 
against  the  real  dofendant  in  intorest  wlio  is  Tiot  a party. 

Daij  V.  Baldirbi,  9)4  Iowa,  .‘>80. 

Ai'}}isfro]if)  V.  Nonnandy,  5 Excli.,  409. 

There  is  no  esto})|)el  against  tlie  state  l)y  unauthorized,  or  extra- 
legal  acts  of  its  officers; — and  their  admissions  are  incompetent 
to  charge  it. 

Tyler  v.  Bailey,  71  111.,  34. 

People  V.  Broivn,  67  111.,  435. 

Dement  v.  RoJdcer,  126  111.,  174. 

So  of  the  unauthorized  admission  hy  a guardian.  It  is  incom 
petent  to  charge  the  ward. 

Ileisen  v.  Heisen,  145  111.,  658,  point  II  (pp.  670-71). 

2.  The  court  erred  in  receiving  in  evidence  112  leases  by  the 
Canal  Commissioners  to  strangers  of  parcels  of  the  90-foot  strip 
(Abst.,  pp.  1165,  1.344,  1387,  1577,  1580,  1582).  The  error  was 
fourfold : 

(1)  Those  leases  were  res  inter  alios. 

(2)  The  proof  was  made  iu  a majority  of  cases  by  merely 
putting  in  a page  from  the  Canal  Report  giving  a list  of  ‘Meases 
of  ‘90-foot  strip’  and  lots”  (See  Al)st.,  j)]).  1165,  1578,  1580,  1581. 
1582). 

This  evidence  was  not  the  best  evidence.  It  gave  at  11  ()5  noth- 
ing to  show  which  were  90-foot  strip  and  which  were  other  lands; 
at  1165,  1580-1-2  it  gave  nothing  as  to  tlie  term  of  .the  lease;  all 
of  them  may  have  been  leases  at  will  or  for  very  short  terms. 
The  lease  at  page  1578  ])rofessed  to  give  the  term,  five  of  them 
being  for  10  year  terms  and  the  rest  for  less. 

These  lists  of  leases  do  not  disclose  anything  as  to  the  nature 
of  the  action  taken  by  the  Canal  Commissioners.  They  are  simj)ly 
lists  taken  from  the  annual  reports  in  which  the  (k)nmiissioners 
l)urported  to  summarize  their  own  former  acts. 

(3)  The  leases  actually  set  out  in  the  only  list  so  given  (Abst., 
1387-1395)  are  upon  their  faces  instruments  signed  by  individuals 
with  the  words  “President”  and  “Secretary”  appended  to  two 


()['  the  names.  They  are  not  signed  1)y  the  Canal  Commissioners 
of  Illinois,  nor  by  ^‘The  Canal  Commissioners.” 

(See  statement  of  objeetion,  Abst.,  pp.  1387-8.) 

(4)  The  leases  so  jmt  in  evidence  in  a lump  may  each  one  be 
unlawful  for  the  same  reasons  as  the  contracts  in  the  case,  at 
bar.  They  may  each  be  beyond  the  power  of  the  Canal  Commis- 
sioners. Many  of  them  obviously  are  so.  For  instance,  the  lease 
of  a mile  and  a half  of  the  canal  strip  in  Snyder  Exhibit  20  (Abst., 
1388)  to  the  Illinois  Steel  Company. 

The  wrongful  leasing  of  the  90-foot  strip  in  this  instance  is  not 
justifiable  by  other  leases  of  the  90-foot  strip  either  rightful  or 
wrongful. 

See  authorities  cited  in  Division  One  as  to  the  unlawfulness  of 
leases  of  the  90-foot  strip,  and  in  Division  Four,  Part  II  as  to  res 
inter  alios.  See  also,  the  treatment  of  res  inter  alios  of  Charles 
F.  Chamberlayne,  Esq.,  in  17  Cyc.  of  L.  & P.,  pp.  274-289  and  cases 
there  cited,  stating  the  grounds  upon  which  such  evidence  is  ex- 
cluded and  the  exceptional  cases  when  it  is  properly  admitted. 

3.  The  court  erred  in  receiving: 

(a)  Lists  of  numerous  alleged  acts  by  the  Canal  Commis- 
sioners in  selling  other  parts  of  the  90-foot  strip; 

(h)  Sales  of  other  lands  bordering  rivers,  which  were  claimed 
to  convey  parts  of  the  river  bed;  and 

(c)  Lists  of  unsold  canal  lots. 

Instances  of  such  acts  in  class  (a)  are  given  at  pages  1415-1419 
of  the  abstract. 

Instances  of  such  acts  in  class  {h) — as  well  as  of  sales  of  other 
lands  bordering  rivers — are  given  on  pages  1294-1296  of  the  ab- 
stract; also  at  pages  1606-1611  of  the  abstract;  also  at  page  1712 
of  the  abstract. 

Instances  of  such  acts  in  class  (c),  viz:  lists  of  alleged  unsold 
canal  lots,  were  offered  and  received,  abstract  pages  1165,  1166, 
1167 ; also  Abst.,  pp.  1331-1337;  also  Abst.,  pp.  1414,  et  seq. 

(a)  The  admission  of  proof  of  sales  of  other  parts  of  the  90- 
foot  strip  by  these  same  Commissioners  in  1907  was  erroneous. 
In  1899  such  sales  were  forbidden  by  the  statute  of  Eev.  Stat.  Ch. 


901] 


11),  Scv.  8,  Cl.  8,  as  aiiieiided  by  tlic  Acd  ol*  April  21,  1899  (4  StaiT 
& Curtis,  Cli.  19,  p.  90). 

Ill  1907  wlieii  tlie  sales  occurred  the  law  had  lieeri  chuuged 
again  by  the  Act  of  May  16,  1905  (L.  1905,  pp.  81-83).  7\ppar- 
ently  the  law  had  been  clianged  by  the  Act  of  1905  to  permit  some 
sales  and  not  others.  Acts  thereunder  were  wholly  irrelevant'to 
the  question  whether  the  sale  in  1904  of  a perpetual  easement  was 
valid. 

(h)  Proofs  of  sales  by  the  Canal  Commissioners  at  other  times 
in  Chicago  or  other  parts  of  the  State  of  lands  bordering  streams, 
such  as  were  put  in  evidence  by  the  defendant  (Abst.,  1294-6, 
1606-11  and  1712)  were  apparently  offered  on  the  theory  that  they 
were  so  many  practical  constructions  of  the  law  by  the  Commis- 
sioners themselves. 

We  deny  their  competency  for  that  or  any  other  purpose.  The 
Canal  Commissioners  and  Trustees  were  not  the  judiciary. 

Their  deeds  show  nothing  on  the  subject  of  what  the  law  is. 

Many  of  these  tracts  vmre  in  the  City  of  Chicago  where,  from 
time  to  time,  the  law  lias  contained  special  provisions  concern- 
ing sales  of  land  different  from  canal  lands  in  the  rest  of  the 
State.  Subdivisions  there  stood  on  a different  footing  (See 
Diederich  v.  B,ose,  133  111.  App.,  384;  228  111.,  610).  It  could  only 
confuse  the  court  to  introduce  indiscriminately  such  sales  of  river 
lands  on  the  (Oiicago  Piver  nnd  in  the  Canal  Subdivisions,  and 
impose  on  the  court  the  burden  of  chasing  down  the  different 
changes  in  the  law  concerning  canal  lands  in  (liii'ago  in  order  to 
show  that  they  have  nothing  to  do  with  lands  on  the  Des  lOaines 
Elver  in  Grundy  County. 

(A  few  instances  of  such  special  provisions  concerning 
sales  in  Chicago  will  be  found  in  the  Acts  of  March  2,  1837 
(Canal  Comp.  39,  41);  Act  of  July  31,  1837  (Canal  Comp.  p. 
49-50);  Act  of  February  17,  1841  ((huial  (h)mp.,  ]).  72);  Act 
of  February  27,  1841  (Canal  (hmp.,  ]).  74);  Act  of  February 
27,  1845  (Canal  Com]).,  p.  92);  Act  of  March  1,  1845  (Canal 
Comp.,  p.  94);  Act  of  Marc'h  7,  1872  (Camd  Comp.,  p.  153); 
and  others.) 

So  with  regard  to  lands  in  Ottawa,  Joliet,  Fock])ort,  etc.,  lists  of 
acts  to  be  hied  showing  special  authorities  concerning  the  sale  of 
canal  property  in  each  of  those  towns. 


9(4 


9^10  Act  of  i^'ohniaiT  15,  1851,  I'tHjuired  tlio  plat  of  the  town  of 
Ottawa  to  he  so  altered  ‘Uis  to  present  the  front  street  of  said 
toirn  on  the  verpe  of  the  second  Ijanh  of  the  Illinois  River.’ ' And 
again,  ‘‘All  the  ground  heticeen  the  bluff  and  the  Illinois  River  in 
the  town  of  Ottawa  shall  he  reserved  from  sale.”  (Canal  Comp., 
]).  20.) 

Sales  in  these  other  localities  wliere  the  law  was  different  or 
may  he  different  at  diff'ei'ent  times  are  res  inter  alios. 

The  court  cannot  try  all  the  issues  suggested  thereby.  Tlie 
eyidence  should  haye  ])een  excluded. 

(c)  Lists  of  unsold  lands  were  apparently  offered  for  the 
double  purpose  of  showing,  first,  that  the  Canal  Commissioners 
did  not  include  bits  of  riyer  bed  therein  and  therefore  did  not  con- 
ceiye  that  they  owned  the  riyer  bed;  and  secondly,  to  show  that 
they  did  sometimes  include  bits  of  tfie  90-foot  strip  in  the  unsold 
lands  and  therefore,  apparently,  think  they  had  the  rights  to  sell 
the  90-foot  strip. 

Such  theory  is  fallacious  and  does  not  inyest  this  eyidence  with 
any  competency. 

4.  The  court  erred  in  receiving  in  eyidence  the  record  of  a 
judgment  in  fayor  of  one  James  McKee  against  the  Canal  Com- 
missioners. (Abst..  p.  1175.) 

The  apparent  theory  upon  which  this  was  receiyed  was  that 
McKee  had  built  a dam  across  the  Des  Plaines  Eiyer  before  the 
act  proyiding  for  the  construction  of  the  canal  was  passed.  The 
Canal  Commissioners  built  the  canal  and  took  the  water  from  the 
lies  Plaines  Kiyer  and  turned  it  into  the  canal,  as  described  in 
Canal  Trustees  y.  Haven,  5 Gilm.  This  took  the  water  away  from 
McKee’s  mill. 

Apparently  also  the  Canal  Commissioners  took  some  of  Mc- 
Kee’s land  for  use  in  constructing  the  upper  basin. 

All  these  suppositions  (stated  most  strongly  in  defendant’s 
fayor)  do  not  make  the  eyidence  of  the  judgment  competent  here. 

Nothing  is  shown  as  to  McKee’s  right.  He  may  haye  had  au- 
thority, express  or  implied,  to  build  the  dam  from  tlie  State  or  the 
Nation,  or  he  may  haye  ac(iuired  possessory  rights.  Eyen  if  a 


905 


trosj^asser  and  iiiilawrul,  wlii(‘h  is  (jiiito  pr()l)ahle,  liis  judgrnnrit 
ai>’ainst  the  (''anal  (''oininissionei's  })r()ves  nothing  liere.  It  was 
res  inter  alios. 

5.  Tlie  defense  put  in  evidence  Governor  Ford’s  deed  to  the 
Canal  Trustees  (Ahst.,  p.  1301),  tlie  Canal  Trustees  l\ex)ort  (Al)st., 
X)x>.  1314-1326),  and  the  release  deed  by  the  Canal  Trustees  (Ahst., 
X)p.  1326-8).  Much  other  evidence  of  the  same  sort  about  the 
Canal  Commissioners  and  Trustees  in  their  dealings  with  stran- 
gers was  erroneously  received  in  evidence. 

Among  such  items  were  the  Canal  Commissioners  Keport  of 
1825  (Abst.j  pp.  1067-1073),  the  report  of  Post  & Paul,  in  an  im- 
perfect condition  with  reference  to  maps  and  diagrams,  which 
were  not  produced,  all  dated  December  25,  1824  (Abst.,  j)p.  1073- 
1090),  passages  from  messages  from  Governor  Ewing,  1834 
(Abst.,  I).  1065),  Governor  Duncan  in  1838  (Abst.,  p.  1066),  from 
Governor  Carlin  (Abst.,  p.  1097).  These  items  were  all  errone- 
ously received.  They  were  res  inter  alios. 

6.  The  court  erroneously  received  in  evidence  the  stipulation 
of  facts  in  Haven  v.  The  Board  of  Trustees  of  the  Illinois  S Michi- 
gan Canal,  made  in  the  Will  (m.  Circuit  Court  October  Term, 
1848”  (Abst.,  pp.  1098-1101)  ])y  which  it  was  stipulated  thus: 

‘Mt  is  also  admitted  tliat  the  Des  Plaines  Piver  is  not  navi- 
gable in  fact,  although  a j)ortion  of  it  is  declared  to  be  so  by 
act  of  the  legislature.”  (Ahst.,  p.  1100.) 

This  stipulation  is  signed  ‘*1  N.  Butterfield,  Atty.  for  Defts.” 
(Abst.,  p.  1101.) 

The  defendants  were  the  Board  of  Trustees  of  the  Illinois  & 
Michigan  Canal.  They  were  not  state  officers  or  ])rivate  x>‘^i4,ies 
mortgagees. 

The  admission  of  the  attorney  for  the  mortgagees  did  not  bind 
the  sovereign  State  of  Illinois. 

See  the  authorities  cited  elsewhere  in  this  brief  that  the  stipu- 
lated state  of  facts  in  Druley  v.  Adaan,  the  Canal  Commissioners 
Lessee  did  not  bind  the  State  in  other  proceedings.  See  also 
Unity  Co.  v.  Equitable  Trust  Co.,  204  TIL,  595,  affiiTuing  107  Til. 
App.,  449. 

The  navigability  of  the  Des  Plaines  Kiver  was  not  a subject 


upon  wliicli  tlie  Canal  'J^aistees  were  autliorized  by  the  State  to 
make  admissions. 

The  admission  by  the  Canal  Trustees  was  self-serving.  They 
desired  to  dam  the  river  to  use  its  water  for  their  canal;  the 
other  party  desired  to  dam  the  river  to  use  its  water  for  a mill. 
The  admission  was  mutually  self-serving.  They  united  in  deny- 
ing the  rights  of  the  people  for  the  purposes  of  that  case.  Such 
self-serving  statements  are  not  admissible  against  the  cestui  que 
trustent. 

Renhcuu  v.  Hall,  131  N.  Y.,  160. 

Bragg  v.  Geddes,  93  111.,  39. 

Buck  V.  Maddock,  167  111.,  219  (Admissions  of  a Guar- 
dian ad  Litem)  (Admissions  of  a prochein  ami). 

The  declarations  of  a trustee  impairing  the  rights  of  a bene- 
ficiary are  incompetent  against  the  beneficiary. 

Thomas  v.  Boatman,  29  111.,  426. 

There  is  no  theory  on  which  an  agreed  statement  of  facts  is 
admissible  in  a suit  between  other  independent  parties  merely 
because  the  subsequent  suit  relates  to  the  same  subject. 

Elting  v.  Scott,  2 Johnson  (N.  Y.),  157. 

7.  The  court  erroneously  received  the  opinions  of  laymen  as  if 
they  were  experts. 

This  was  true  of  many  of  the  old  settlers  called  by  the  defend- 
ant, e.  g.,  the  following: 

Alexander  (Abt.,  pp.  508-9). 

Williams  (Abst.,  p.  523). 

Burt  (Abst.,  p.  572). 

Bowers  (Abst.,  p.  604). 

Collins  (Abst.,  p.  614). 

Killmer  (Abst.,  p.  626). 

Other  similar  cases  occur,  but  these  are  enough. 

These  opinions  were  incompetent. 

8.  The  court  erred  in  receiving  on  cross-examination  the  opin- 
ion of  Clement,  who  was  not  an  expert  on  navigation  (Asbt.,  pp. 


907 


39G-7)  and  who  said  on  re-direcd  ‘‘I  don’t  know  exactly  wliat  navi- 
gability means  to  tell  the  truth.  I have  no  opinion”  (Abst.,  p. 
399),  and  denied  the  motion  ot  the  complainant  to  strike  out  the 
opinion.  (Abst.,  pp.  397,  398,  399,  400.)  This  was  error. 

Arthur  C.  Clement  testified: 

‘‘I  am  56  years  old,  was  born  here  in  Will  County.  Have 
always  lived  here  except  an  absence  in  boyhood  prior  to  the 
time  I was  ten  years  old.  I have  lived  right  on  the  banks  of 
the  Des  Plaines  and  gone  up  and  down  the  river  in  boats 
from  an  early  period  of  my  life,  practically  every  year,  say 
from  1864  to  1900.  I have  not  boated  on  the  river  since  the 
drainage  canal  water  was  turned  in.”  (Hep.  of  A.  C.  Cle- 
ment.) 

(Here  the  witness  described  five  boats  that  he  owned  and 
his  boat  house  on  the  river.) 

started  in  life  as  an  attorney  and  followed  it  up  by  the 
loan  and  real  estate  business.  Since  1895  I have  kind  of  re- 
tired. 

As  to  the  depth  of  water  in  the  river,  there  was  plenty 
except  that  up  the  rapids  this  side  of  Brandon’s  bridge  and 
a little  below  and  the  rapids  at  Treat’s  Island.  There  was 
no  trouble  in  running  a boat  down  there  that  would  draw 
even  three  feet  of  water,  if  you  knew  the  channel.  Between 
Lockport  and  a point  two  miles  above  Joliet  the  river  is  not 
navigable  for  small  boats.  Prom  Malcolm’s  dam  down  to 
the  mouth  there  was  plenty  of  water  until  you  got  down  about 
a half  mile  this  side  of  Brandon’s  bridge.  There  was  a 
shallow  place  there  amongst  the  bowlders.  I had  no  trouble 
in  running  a row  boat  there,  if  I knew  where  to  go,  drawing 
fifteen  inches  of  water.  Then  you  had  clear  sailing  if  you 
knew  the  channel,  right  straight  through  to  Treat’s  Island. 
There  you  took  the  left  hand  channel  going  down,  that  is 
the  east  chanel.  That  was  the  deepest  channel.  About  one- 
third  of  the  way  down  the  island  there  used  to  be  an  old 
dam,  I think,  or  something.  There  was  the  shallowest  place. 
I have  grounded  there  a great  many  times;  sometimes  I had 
to  get  out  and  pull  it  over.  Generally  I could  pole  it  over. 

The  length  of  that  shallow  ])lace  was  not,  I don’t  think,  over 
100  feet.  After  that  tlie  water  was  deep  until  about  the 
mouth  of  the  DuPage  River.  There  you  had  to  know  the 
channel,  or  a boat  drawing  fifteen  inches  might  strike  bottom. 
Then  you  had  clean  sailing  until  just  below  the  aqueduct 
there  was  an  old  dam  used  to  be  there  and  you  passed  through 
a rather  narrow  channel  there.  Below  that  it  was  all 
bowlders  for  half  a mile  to  the  mouth.  If  you  dodged  the 
bowlders  you  were  all  right.  If  you  did  not  you  would  come 
to  grief.  These  were  loose  bowlders.  TJiere  would  be  about 


1)08 


tlireo  or  four  indies  over  tlie  to])  of  tliem,  maylie  two  feet  of 
water  between  them.  TJie  liowlders  were  about  three  feet  in 
diameter,  a great  many  of  them.  There  was  plenty  of  water 
between  tlie  bowlders  if  you  could  dodge  them.  About  1885 
1 made  a trip  from  here  to  a mile  lielow  the  junction  of  the 
Kankakee  and  Des  Plaines  Jtivers.  We  did  not  have  to 
l)ole  at  all  that  tri]).  The  boat  loaded  as  it  was  drew  between 
twelve  and  tift^3en  inches. 

At  that  time  a boat  drawing  two  feet  of  water  would  find 
the  river  navigable  in  the  condition  it  then  was. 

if  the  loose  bowlders  were  removed  and  the  hundred  feet 
of  shallows  were  excavated  at  Treat’s  Island,  and  the  bowlders 
at  the  mouth  and  at  Brandon’s  bridge  were  removed,  I could 
run  a boat  c/irryi^g  three  feet  of  water  on  that.  I presume 
in  the  neighborhood  of  three-quarters  of  a mile,  taking  all 
these  three  together,  would  have  to  be  cleared  out  before 
you  could  get  through  drawing  three  feet  of  water.”  (Dep. 
of  A.  C.  Clement,  Abst.,  pp.  1^92-3.) 

“Q.  Have  you  stated  to  any  one  within  the  last  thirty  days 
that  it  was  perfectly  absurd  to  contend  that  the  Des  Plaines 
River  was  a navigable  river! 

A.  I don’t  think  I said  that.  I made  the  remark  that  I 
understood  that  the  l)es  Plaines  River  was  not  a navigable 
river,  and  that  the  Supreme  Court  of  this  state  had  deter- 
mined it  was  not  navigable.” 

(At  the  trial,  counsel  for  complainant  moved  to  strike 
out  the  answer  don’t  think  I said  that”  and  the  volunteer 
statement  which  follows  that  made  the  remark  that  I 
understood  the  Des  Plaines  River  was  not  a navigable  river, 
and  the  Supreme  Court  of  this  state  determined  that  it  was 
not  navigable.”  Motion  overruled^) 

(Said  ruling  appears  on  Trans,  pp.  2597-8.) 

And  did  you  not  in  that  connection  state  that  you 
knew  of  your  own  knowledge  it  was  not  navigable,  because 
you  had  been  obliged  to  get  out  and  pull  a row  boat,  even  in 
places  in  the  Des  Plaines  River? 

A.  I don’t  remember  saying  that.  I would  say  it  now, 
because  I have  got  out.” 

(At  the  trial  the  counsel  for  the  complainant  moved  to 
strike  out  the  above  answer  on  the  ground  that  it  was  not 
responsive.  Motion  overruled.) 

(Said  ruling  appears  on  Trans,  p.  2598.) 

As  a lawyer  and  a man  who  is  familiar  with  the  Des 
Plaines  River,  and  knowing  that  the  river  is  not  a navigable 
river  that  is  capable  of  carrying  commerce  in  the  ordinary 
way  in  which  commerce  is  carried  on;  I ask  you  whether 
or  not  in  your  opinion  the  Des  Plaines  River  is  a navigable 
liver  ? 


Counsel  for  Coniplaiiianl : TIk;  (jiuistioii  is  ol)j(;ct(Ml  to, 
as  not  eross-exainination,  and  as  enibracan^'  elenienls  of  sup- 
posed legal  determination  by  the  Supreme  Court,  whieli  should 
l)e  separated  from  the  ((uestion;  so  that  that  element  can  be 
judged  of  separately.  The  witness  ])robably  refers  to  the 
ease  wliicli  has  been  cited  by  eoimsel  for  defendant  in  the  argu- 
ment for  an  injunction  in  this  case,  in  wliicli  it  is  stated  in 
the  opinion  of  the  court  that  it  was  stipulated  by  the  parties 
that  the  river  was  not  navigable,  and  which  is  the  only  ref- 
erence to  that  subject  which  occurs  in  the  decisions  of  the 
Supreme  Court ; where  the  owner  of  the  dam  on  one  side,  and 
the  Commissioners  of  the  canal  on  the  other,  who  desired  to 
obtain  and  make  use  of  the  water  of  the  river ; .one  for  the 
purposes  of  his  mill,  and  the  other  for  the  purposes  of  their 
canal;  and  where  the  parties  having  mutual  interest  that  the 
river  should  be  considered  as  non-navigable,  which  is  the  only 
decisions  by  our  court  upon  the  navigability  of  the  Des  Plaines 
River. 

Witness:  I have  always  understood  that  the  Des  Plaines 
River  was  non-navigable.” 

(The  trial  court  having  ruled  at  a prior  point  in  the  trial 
that  the  objection  of  the  complainant  above  mentioned  was 
sustained,  counsel  for  defendant  subsequently  again  called  the 
attention  of  the  court  to  the  said  objection  in  connection  with 
the  direct  examination.  Thereupon  tlie  court  ruled.  Objec- 
tion overruled.) 

(Said  ruling  appears  on  Trans,  p.  2597.) 

From  your  knowledge  of  the  Des  Plaines  River,  1 ask 
you,  in  your  opinion,  whether  or  not  the  Des  Plaines  River 
ever  was  or  now  is  capable,  without  inqn'ovement,  of  car- 
rying commerce  in  the  ordinary  way  in  which  commerce  is 
carried  on  in  this  country? 

Counsel  for  Complainant:  The  same  objection  made  to  all 
the  (piestions  before  may  be  considered  to  each  and  all  of 
them  re])eated  here.” 

(The  trial  court  having  ruled  at  a ])rior  ])oint  in  the  trial 
that  the  objection  of  the  complainant  above  mentioned  was 
sustained,  counsel  for  detendant  sul)se(juently  again  called  the 
attention  of  the  court  to  the  said  objection  in  connection  with 
the  direct  examination.  Thereu])on  the  court  ruled.  Olqec- 
tion  overruled.) 

(Said  ruling  ap])ears  on  Trans,  p.  2597.) 

‘W.  Why,  in  its  ])resent  condition  you  couldn’t  carry  on 
commerce.  Of  course,  I understand  you  can  ])ut  a fiat  bot- 
tomed boat  on  a river  and  put  a wheel  on  the  ])ack  end  and 
navigate  it  in  three  feet  of  water. 


910 


(^.  That  the  eiirrciits  in  tliis  river  are  such  that  you  simply 
could  not  ^o  up  it  or  go  down? 

A.  I don’t  think  the  currents  are  that  way.  Certain  points 
in  the  river  are  too  shallow  for  it,  even  now.” 

(At  the  trial,  counsel  for  complainant  moved  to  strike  out 
the  above  answer  as  not  resnonsive.  Motion  overruled.) 
(l)ep.  of  A.  C.  Clement,  Cross-Exam.,  Abst.,  pp.  396-8.) 

Re-direct  Examination. 

Your  statement  on  cross-examination  of  your  opin- 
ion as  to  the  non-navigability  of  the  river  is  meant  to  apply 
to  the  river  without  improvements  in  the  respect  you  men- 
tion in  your  direct  examinaton  by  the  removal  of  boulders 
and  excavations? 

A.  No,  sir;  I always  understood  that  the  river  was  non- 
navigable.  I don’t  know  exactly  what  navigability  means,  to 
tell  the  truth.  I have  always  understood  from  other  attor- 
neys, that  the  decisions  of  the  Supreme  Court  were  always 
that  it  was  non-navigable,  and  I always  regarded  it  as  that. 
But  not  having  any  clear  ideri  in  my  own  mind  what  naviga- 
bility means,  I haven’t  got  any. 

Q.  And  having  given  your  impression  from  the  state- 
ments from  other  attorneys,  you  were  repeating  opinions  so 
obtained,  in  answer  To  Mr.  Munroe’s  question? 

A.  Yes,  sir;  I never  have  looked  it  up. 

Q.  Yon  don’t  mean  to  be  now  understood  as  expressing 
an  opinion  of  your  own  on  that  subject? 

A.  I have  no  opinion.”  (Dep.  of  A.  C.  Clement,  Ke-direct 
Exam.,  Abst.,  p.  399.) 

Jefferson  street  dam  is  gone  out,  the  drainage  people  took  it 
out  about  1898.  The  old  dam  near  Treat  Island  was  across  one 
branch.  There  is  none  showing  there  at  all  except  that  the  water 
was  shallow  at  that  point.  The  other  shallow  point  was  incident 
to  an  old  dam  about  three-quarters  of  a mile  below  the  aqueduct. 
There  is  nothing  there  to  show  what  kind  of  a dam  it  was, 
nothing  more  than  there  were  rocks  there,  did  not  show  above 
the  water. 


Re-cross  Examination. 

‘‘There  was  a very  current  at  McDonough  street  since 
the  dam  was  taken  out. 

Q.  Assuming  that  dam  numher  one  was  not  in  the  river — 
A.  .That  is  the  dam  up  above  here? 

Q.  Yes,  sir,  that  is  the  dam  that  the  Economy  Light  & 
Power  Company  now  has;  and  solely  upon  your  knowledge  as 


to  tlie  conditions  in  the  river,  1 will  ask  you  to  state  whether 
or  not  in  .your  opinion  the  Ues  Plaines  is  capable,  in  its  pres- 
ent STATE,  of  carrying  the  commerce  of  this  country  up  and 
down  the  river  I 

(Objected  to  as  not  re-cross  and  because  the  witness  has 
declared  he  has  no  opinion  and  because  of  indefiniteness  and 
as  irrelevant,  incompetent  and  immaterial.) 

A.  The  rapids  at  the  Sault  Ste.  Marie  are  16  feet  fall 
there  in  a mile;  and  the  rapids  are  so  stiff  there  that  noth- 
ing can  go  up  except  in  places  by  professional  Indians  with 
poles.  It  is  a rapid,  the  worst  in  the  country.  And  the  fall 
through  here  to  the  head  of  Lake  Joliet  is  nearly  double  that 
amount. 

(At  the  trial,  counsel  for  complainant  moved  to  strike 
out  the  above  answer  as  not  responsive.  Motion  overruled.) 

(Said  ruling  appears  on  Trans,  p.  2598.) 

Q.  I understand,  yon  then  answer  my  question  by  saying 
no?  - 

A.  If  that  dam  was  taken  out,  it  would  be  a raging  rapid, 
with  double  the  fall  of  the  Soo  rapids. 

(At  the  trial,  counsel  for  complainant  moved  to  strike 
out  the  above  answer  as  not  responsive.  Motion  over- 
ruled.) 

(Said  ruling  appears  on  Trans,  p.  2598.) 

Q.  And  could  not  be  used  for  commercial  purposes?  . 

Counsel  for  Complainant:  I object. 

A.  If  there  was  water  enough,  you  could  go  down  a-kiting, 
but  you  couldn’t  get  up. 

Counsel  for  Complainant:  We  will  enter  a motion  to  strike 
out  fhe  re-cross  examination. 

(Euling  on  said  motion  at  the  trial  of  said  cause:  The 
Court:  I overrule  these  motions  on  the  ground  that  these 
^‘motions  to  strike  out  are  not  made  in  time.  Referring  to  the 
specific  motions  made  in  the  trial  court  to  strike  out  specific 
answers  under  the  general  objection  ‘‘to  strike  out  the  whole 
re-cross  examination”  made  at  the  faking  of  the  deposition. 
Sadi  ruling  appears  on  Trans,  p.  2599.)  (Hep.  of  A.  C.  Cle- 
ment, Abst.,  pp.  400-1.) 

This  witness  had  had  intimate  knowledge  of  the  river  from  per- 
sonal use  of  it  for  86  years.  He  had  started  in  life  as  a lawv^er, 
but  drifted  off  into  the  real  estate  and  loan  business  and  had 
no  opinions  of  his  own  as  to  what  constituted  navigability  and 
plainly  said: 

“Not  having  any  clear  idea  in  my  own  mind  what  naviga- 
bility means  I haven’t  got  any.  I never  have  looked  it  up.  I 
have  no  opinion.” 


912 


It  is  sulnnitted  that  undcT  these  eireuiiistances  the  answers 
wJiieli  lie  ^ave  on  cross  and  re-cross  examination  repeating  the 
opinions  he  liad  received  from  other  attorneys,  ought  not  to  liave 
been  allowed  to  stand. 

And  the  suggestion  of  the  trial  court: 

overrule  these  motions  on  the  ground  that  these  mo- 
tions were  not  made  in  apt  time,” 

is,  it  seems  to  us,  entirely  too  narrow  and  teclmical.  The  ob- 
jections and  motions  were  made  and  entered  while  the  vfitness 
was  on  the  stand.  The  taking  of  depositions  proceeded  from 
day  to  day  for  weeks  thereafter,  his  (Reposition  having  been 
taken  February  19,  1908  (Abst.,  390)  and  filed  April  18,  1908,  and 
the  hearing  begun  in  Court  April  20. 

But  further,  tlie  wutness  states  that  there  was'  water  for  a boat 
drawing  two  feet,  all  the  way,  and  by  clearing  out  boulders  from 
three  different  places  in  the  16-mile  reach,  which  three  places 
occupied  altogether  in  the  neighborhood  of  three-ouarters  of  a 
mile,  a boat  drawing  three  feet  of  water  could  be  navigated  all 
the  way. 

This  is  important  as  a matter  of  fact  tliat  the  alleged  boulder 
obstructions  taken  all  together  wouldn’t  interfere  for  more  than 
three-quarters  of  a mile  and  wouldn’t  interfere  at  all  for  a boat 
drawing  two  feet,  and  would  only  amount  to  an  interference  for 
that  short  distance  for  a boat  drawing  three  feet. 

And  he  said: 

understand  you  can  put  a fiat-bottom  boat  on  the  river 
and  put  a wheel  on  the  back  end  navigated  it  in  three  feet 
of  water.” 

Still  some  attorneys  had  told  him  that  the  river  was  not  navig- 
able,- that  the  Supreme  Court  had  so  decided,  and  having  no  opin- 
ion of  his  own,  he  accepted  the  opinion  so  suggested  to  him. 

Plainly  the  witness  while  very  well  acquainted  with  the  phy- 
sical conditions  of  the  river  as  encountered  by  a boat  actually 
going  up  and  down  the  same,  had  no  engineering  knowledge  or 
navigation  knowledge  of  the  technical  kind. 

Plainly  he  labored  under  the  impression  that  several  others 
of  the  witnesses  did,  that  there  ought  to  be  six  feet  of  water 
wfithout  an  obstruction  to  make  a stream  ^Civailable  for  ])rofit- 


able  coimnorco.”  Tliis  was  wliat  they  liad  seen  on  tlie  canal  and 
iliey  believed  that  notliin^  else  would  do. 

Plainly  lie  was  not  familiar  with  the  great  list  of  steamboats 
given  in  House  Document  264,  which  plied  the  Mississippi  and 
Ohio  Rivers  drawing  two  feet  of  water. 

Plainly  he  was  not  familiar  with  the  development  of  the  motor 
freight  boat  running  on  from  9 to  30  inches  of  water. 

Again,  he  says: 

‘‘The  rapids  at  the  Saulte  Ste.  Marie  are  16  feet  fall 
there  in  a mile,  and  the  fall  through  here  to  the  head  of 
Lake  Joliet  is  nearly  double  that  amount.’’ 

While  the  correctness  of  Cooley  Exhibit  3,  Mr.  Cooley’s  con- 
solidated profile,  was  conceded,  and  it  shows  the  elevation  of 
Dam  No.  1 to  he  57  and  the  head  of  Lake  Joliet  to  be  77,  a fall 
of  20  feet  in  a distance  of  three  miles,  DamNo.l  is  at  2 8/10 
miles  form  the  power  station,  and  the  head  of  Lake  Joliet  at  5 8/10 
from  the  power  station.  (See  Cooley  Exhibit  3.) 

In  other  words,  the  measured  fall  by  actual  survey  in  the  three 
miles  in  question  is  20  feet,  or  about  7 feet  to  the  mile. 

Substantially  the  same  is  shown  by  the  House  Document  263, 
p.  41,  only  more  favorable  to  the  State.  The  elevation  at  Jeffer- 
son Bridge  is  there  given  at  533.6.  Hennepin  datum  and  the 
elevation  l^  miles  below  Brandon  Bridge  (which  is  the  head  of 
Lake  Joliet)  is  given  as  517.6,  the  difference  l)eing  just  16  feet. 

The  witness  said  that  the  fall  “is  nearly  double  that  amount.” 
Here  again  he  was  plainly  quoting  wliat  some  peojile  had  told  him, 
without  knowledge. 

We  respectfully  submit  that  the  court  erred  in  retaining  this 
cross-examination  and  giving  it,  as  plainl}^  was  done,  controlling- 
weight  against  the  clear  proof  by  the  witness  of  the  physical  char- 
acteristics of  the  stream,  giving  it  plenty  of  depth  and  showing 
that  the  obstructions  taken  all  together  didn’t  amount  to  more 
than  three-quarters  of  a mile. 

The  physical  conditions  which  he  actually  knew  and  testified 
to  from  intimate  knowledge,  were  plainly  shown  by  the  other 
evidence  to  be  the  facts  which  characterize  a navigable  stream; 


and  by  a tal)k‘  of  boats,  to  be  of  the  kind  tliat  would  admit  navi- 
i»ation  by  sneli  boats  as  are  in  actual  use. 

Tbe  obstructions  aggregating-  tliree-cjuarters  of  a mile  in  the 
1(1  miles  l)ecame  trivial  in  tbe  light  of  the  decision  in  the  Mon- 
tello  case  and  in  the  other  cases  which  we  have  assembled  else- 
where in  Division  8,  Part  7,  Cl.  2.  ''Removable  difficulties  and 
partial  limitations  do  not  control  navigability.” 

Again  it  will  be  observed  that  the  witness  had  used  the  stream 
every  year  from  1864  to  1900.  The  years  1864  to  1871  inclusive, 
made  between  7 and  8 years  of  use  before  the  Deep  Cut  water  was 
turned  in,  giving  familiarity  with  the  Des  Plaines  River  when  all 
the  depletions  were  at  work  and  none  of  the  increases  of  its 
water  supply.  And  again,  he  had  not  used  the  river  since  1900 
when  the  drainage  water  was  turned  in.  His  testimony  was 
as  to  the  river  as  a depleted  river  and  not  as  an  augmented  river. 

Again,  the  witness  was  asked  to  pass  on  the  navigability  of  the 
river 

"in  its  present  state,  assuming  that  Dam  No.  1 was  not 
in  the  river.” 

This  was  plainly  incompetent, — not  only  the  witness  was  not 
an  expert  engineer  or  technical  navigator,  and  was  not  qualified 
to  form  an  opinion,  and  vowed  that  he  had  no  opinion,  but  he  was 
asked  to  assume  the  contradictory  and  impossible  condition  of 
the  river  remaining  in  its  present  state,  that  is,  with  the  Drainage 
water  all  in  and  Dam  No.  1 taken  out,  and  no  sort  of  controlling 
works  provided.  This  was  plainly  incompetent.  If  assumes  that 
the  entire  body  of  drainage  water  should  be  turned  in.  Dam  No. 
1 taken  out  and  the  added  water  left  to  take  its  course. 

The  same  question  was  asked  the  witness  Henry  H.  Pohl  (Abst., 
pp.  444,  446-7),  who  said  he  had  used  the  river  from  1869  to 
1876.  He  replied: 

"I  don’t  know  whether  the  taking  out  of  Dam  No.  1 would 
make  any  difference  after  the  first  rush  of  water  was  over. 
I don’t  know  that  this  would  -increase  the  hazard  any.  Ir 
would  not  have  much  commercial  value,  I don’t  think,  left 
in  that  condition  with  the  dams  out  and  no  improvements 
made  with  reference  to  checking  the  water.” 

The  same  questions  were  asked  on  cross-examination  of  the  wit- 


iioss  Flanders  (Abst.,  pp.  429,  4:)2)  and  over  ()bje(dion  lie  vi)- 
plied : 

“0,  I don’t  think  it  would  ])e  without  the  (^onstrindion. ” 

With  that  ))artienlar  witness  we  varied  the  conditions, — since 
lie  was  asked  on  the  cross  to  pass  on  one  impossibility  non-exist- 
ent situation, — by  asking  him  as  to  a different  non-existent  hut 
probable  situation,  viz:  a development  of  the  river  as  planned 
by  the  United  States  Engineers,  which  he  replied  would  be  navig- 
able. (Abst.,  433.) 

It  is  plain  that  such  questions  as  to  conditions  which  were  not 
only  non-existent,  but  which  never  did  exist  and  never  will  exist, 
are  not  competent  cross-examination  of  men  who  are  not  engineers 
and  who  were  not  called  as  experts,  but  who  were  called  only  to 
narrate  their  own  personal  acquaintance  with,  and  use  of,  the 
river. 

That  the  court,  at  times,  was  specially  technical  in  sustaining 
objections  against  the  State,  is  instanced  by  its  holding  that  the 
motion  to  strike  out  the  cross-examination  of  Mr.  Clement,  made 
while  the  witness  was  on  the  stand,  was  not  in  apt  time,  and  that 
he  did  .not  always  adhere  to  this  course  is  shown  by  the  following 
a week  later  in  the  trial: 

‘‘Counsel  for  Complainant:  And  I also  ask  your  Honor, 
in  this  connection,  that  whenever  I simply  state  ‘I  object,’ 
it  may  be  upon  the  ground  of  immateriality  and  all  other  rea- 
sons which  might  be  suggested. 

The  Court:  Very  well.”  (Abst.,  ]).  1097.) 

9.  The  court  erred  in  receiving  in  evidence  the  letter  from  Lt. 
Col.  W.  H.  Bixby  to  Gen.  A.  McKenzie,  Chief  of  Engineers,  dated 
March  27,  lOOO,  and  by  Robert  Shaw  Oliver,  Assistant  Secretary 
of  War  to  Charles  A.  Afunroe,  dated  June  7,  190().  (Abst.,  ])[>. 
1296-1301.) 

These  letters  set  out  that  Lt.  Col.  Bixhy,  at  ( Jiicago,  had  rec- 
ommended that  “The  Hon.  H.  M.  Snap})  and  Air.  Charles  A.  Alun- 
roe  be  informed  that  the  Wai*  Department  will  waive  any  and  all 
objections  that  it  may  have  to  the  progress  of  snch  water-power 
dam  construction  as  proposed  by  Mr.  M unroe’s  letter  of  Alarch 
20,  1906,  and  its  enclosures,  provided  that  he,  on  the  part  of  the 
power  dam  owners,  agrees”  to  several  important  items  for  the 


])i‘()tocti()n  of  the  United  States  Government.  Tliey  further  show 
that  Mr.  Oliver  acknowledges  a letter  from  Mr.  Munroe  dated 
June  5,  .190(1,  enumerating  some  fresli  conditions,  and  said  ‘Mf 
these  (‘onditions  are  cornydied  with  in  tlie  opinion  of  the  Chief  of 
Engineers,  U.  S.  Army,  concurred  in  hy  this  department,  the 
work  proposed  is  in  general  harmony  with  the  work  of  the  im- 
provement recommended  hy  the  Board  of  Engineers  * * * 

in  its  report  * * * printed  as  House  Document  No.  263,  59th 

Congress,  First  Session.  Inasmuch,  however,  as  Congress  has 
not  as  yet  authorized  the  improvement  of  this  river,  this  depart- 
ment does  not  deem  it  expedient  to  take  further  and  definite  action 
in  the  matter  of  approving  the  plans. 

(To)  Charles  A.  Munroe,  Very  respectfully. 

The  Kookery,  Egbert  Shaw  Oliver, 

Chicago,  Illinois.  Assistant  Secretary  of  War,” 

(Abst.,  p.  1301.) 

The  admission  of  these  letters  was  error. 

The  letters  of  Mr.  Munroe  of  March  16  and  March  20,  with  the 
three  blue-prints  accompanying  the  same,  upon  which  the  opin- 
ion is  based,  were  not  produced. 

The  identity  of  what  was  submitted  by  Congressman  Snapp  and 
Mr.  Munroe  to  Mr.  Bixby  with  the  work  now  being  done  by  de- 
fendant is  not  shown. 

The  letters  refused  to  give  a federal  permit  for  the  work  pro- 
posed by  Munroe ’s  letters  of  1906. 

As  a consolation  to  the  defeated  applicant,  Oliver  assures  him 
that  JIcKenzie  is  of  opinion  that  the  plan  in  Munroe ’s  letters  and 
blue-prints  (not  produced)  is  in  general  harmony  with  the  work 
of  improvement  recommended  in  Document  263. 

This  is  irrelevant  and  incompetent  against  the  State  of  Illinois. 

The  State  called  Gen.  McKenzie  as  a witness.  Defendant  in 
cross-examination  questioned  him  about  this  correspondence  as 
follows : 

‘'Gen.  McKenzie:  The  Engineers’  Report  published  in 
1905  relates  to  the  proposed  improvement  of  that  river  with 
locks  and  dams  in  connection  with  the  proposed  fourteen-foot 
waterway.  It  was  proposed  as  a part  of  the  plan  suggested 
that  some  locks  and  dams  be  placed  in  the  Desplaines  River. 


917 


The  Economy  Liglit  & Power  Oompany,  or  Mr.  Charles  A. 
Mimroe,  proposed  to  build  a dam  near  the  mouth  of  the  Des- 
[)laines  JMver  and  tiled  plans  for  his  work  in  my  office  at  one 
time.  As  a result  of  the  presentation  of  those  plans,  which 
were  simply  presented  for  the  purpose  of  seeing  whether  they 
were  in  harmony  with  the  plans  for  the  improvement  of  the 
river, — it  resulted  in  Mr.  Munroe  being  informed  that  under 
certain  conditions  they  would  harmonize  with  the  plans  for 
improving  the  river. 

Interrogatory  G4:  Is  not  it  a fact  that  those  conditions 
were  to  be  met  by  Mr.  Munroe — that  provisions  should  be 
made  for  a lock  at  the  side  of  the  dam,  and  that  the  Govern- 
ment should  be  given  control  of  the  pool  to  be  formed  by  the 
dam!  A.  Those  conditions  mentioned  were  a part  of  the 
conditions ; I do  not  remember  fully  what  they  were.”  (Abst., 
p.  173.) 

Re-re-cross  Examination. 

‘‘There  is  a record  in  my  department  in  regard  to  some  ac- 
tion relating  to  Charles  A.  Munroe. 

To  the  best  of  my  recollection,  nothing  has  ever  come  to  the 
department  from  this  Economy  Light  & Power  Company. 

There  is  no  application  for  the  approval  of  the  plans  to 
the  best  of  my  recollection.  The  question  presented  by  Mr. 
Munroe  was  whether  the  plan  submitted  would  be  in  harmony 
with  the  work  of  improvement  proposed  by  the  Government.” 
(Abst.,  p.  180.) 

The  admission  of  the  letters  was  error. 

10.  The  Court  erred  in  receiving  the  testimony  of  Munroe 
(Abst.,  pp.  1611-13)  and  the  trust  deed  offered  and  received  with 
his  testimony  (Abst.,  pp.  1613,  1712,  1854  1854a,  h)  as  to  the  ex- 
penditure of  money  by  Munroe,  his  negotiations  with  and  sale  to 
defendant  company  and  the  making  of  trust  deed  and  sale  of 
bonds  by  defendant.  (Abst.,  pp.  1613,  1713,  1854-1854a,  h.) 

All  these  were  res  inter  alios  and  irrelevant,  incompetent,  im- 
material, and  not  the  best  evidence. 

The  manifest  purpose  was  to  suggest  that  some  question  of 
purchase  for  value  without  notice,  innocent  purchaser,  or  hona 
fide  investor,  was  involved. 

But  there  is  no  such  thing  as  a hona  fide  purchase  of,  or  invest- 
ment in  property  affected  with  public  rights.  The  purchaser  is 
charged  with  notice  of  the  rights  of  the  public. 


1)18 


So  hold  as  to  ])ul)Ii(t  lands 

Karr  v.  Watts,  5 Wheat.,  19  U.  S.,  550. 

Sou.  Pac.  11.  Co.  V.  Dull,  22  Fed.,  489. 

Sviitli  V.  Johnson,  57  Ala.,  653. 

McCnlUs  V.  Cop.,  51  Fla.,  100. 

And  thei-e  is  no  such  thing  as  a hona  fide  pureliaser  or  assignee 
of  an  illegal  and  void  contract. 

Williams  v.  Judy,  5 Gilm.,  282  (a  gaming  note). 

Tenney  v.  Foote,  4 111.  App.,  594  (note  for  differences  on 
option  contract  for  oats). 

AVhere  one  knowingly  and  by  collusion  with  tlie  deputy  com- 
missioner has  obtained  a patent  from  the  state  of  lands  not  sub- 
ject to  sale,  and  on  the  next  day  has  made  sale  of  them  at  a distant 
place  to  another  who  had  never  seen  the  lands  but  who  paid  for 
them  almost  double  their  value,  it  will  require  a pretty  strong 
showing  to  establish  the  sood  faith  of  such  a purchase. 

(1875)  Atty.  Gen.  v.  Thomas,  31  Mich.,  365. 

A purchaser  must  take  notice  of  dedication  to  the  public  affect- 
ing the  subject  of  the  purchase. 

Atty.  Gen.  v.  Abbott,  154  Mass.,  323,  13  L.  E.  A.,  251. 

And  the  same  applies  to  any  right  of  the  public. 


The  trial  court  fell  into  three  fundamental  errors. 

He  held  that  the  sovereign  State  could  not  attack  the  contracts 
made  by  the  Canal  Commissioners,  however  illegal  they  might  be, 
without  making  the  Canal  Commissioners  parties.  (Abst.,  p. 
788.) 

In  so  doing,  he  was  applying  a sound  general  rule  of  equity  prac- 
tice, but  which  had  no  application  here,  because  the  statute  which 
creates  the  Canal  Commissioners  |)rovides  that  they  shall  not  be 
sued. 

This  was  the  fundamental  error  concerning  the  contracts. 

The  court  held  that  the  fact  that  the  Canal  Commissioners  had 


919 


rroiiiuMitly  given  nwny  llie  light  lo  ili(‘  IxmI  of  tli(‘  str(‘ani  in  tin* 
})ast,  or  let  llieir  grantees  so  ('laiin,  and  had  let  tlnhr  gi‘ant(X‘s 
use  the  bed  of  tlie  stream  in  the  ])ast,  proved  that  no  right  in  tin.* 
bed  of  tlie  stream  existed  on  the  ])art  of  the  State. 

Tliis  was  the  fundamental  ei-ror  respecting  the  title  to  the  lied 
of  tlie  stream. 

He  held  that  the  stream  liad  never  lieen  used  except  a few  times 
going  down  stream,  and  that  therefore  it  was  not  navigable  be- 
cause this  was  not  commerce. 

This  was  the  fundamental  error  concerning  the  navigation  of 
the  stream. 

The  proofs  showed,  and  universal  history  shows  tliat  it  had  been 
used  innumerable  times  in  both  directions:  And  the  law  shows 
that  navigation  one  way,  and  that  down  stream,  is  enough. 

But  what  constitutes  coinmercef  Thonsand-ton  steamboats  with 
smokestacks  seventy  feet  tall? 

Or  thousands  of  tons  of  goods  in  lioxes,  barrels,  and  bales  ? 

Are  these  commerce?  No. 

The  former  are  some  of  the  instruments,  and  the  latter  are  some 
of  the  subjects  of  commerce. 

But  coDmierce  itself  is  hninan  intercourse. 


The  trial  court  regarded  himself  lionnd  by  the  decision  in  tlie 
Schulte  case,  218  111.  We  have  shown  elsewhere  that,  rightly 
understood,  the  Schulte  case  is  a sti'ong  authority  in  favor  of  the 
State.  It  expressly  holds  that  the  etfect  of  the  o])ening  of  the 
Sanitary  District  (diannel  and  the  turning  of  the  waters  of  Lake 
Michigan  thereby  into  the  Des  Plaines  and  Illinois  rivers,  was  to 
increase  the  jieimanent  snl'mergeiice  of  the  bed,  and  lianks,  and 
deptli  of  the  stream,  and  to  inci-ease  and  extend  the  right  of  navi- 
gability. (218  ill.,  120.) 

Ihit  it  is  snbmijted  fnrtlier  that  tlie  case  there  arose  n])on  a 
bill  to  restrain  the  defendant  ‘‘from  huntiiuf  over  the  lands  of 
appellant.”  The  detendant  (daimed  the  right  of  hunting  over  the 
lands  of  ap])ellant  fi'om  the  boat  by  which  he  navigated.  The 


920 


coiii])luiiiant  denied  defendant’s  right  to  hunt,  and  filed  his  bill  to 
test  the  (juestion.  Tlie  court  decided  that  the  right  to  hunt  and 
fish  over  the  water  upon  his  iand  was  the  rigid  of  the  riparian 
owner,  and  was  not  a common  right. 

It  is  submitted  that  the  expressions  of  the  court  in  such  a case 
between  private  parties  over  the  right  to  hunt  and  fish,  should  not 
l)e  given  a controlling  effect  adverse  to  the  claims  of  the  State 
based  upon  more  than  two  hundred  years  of  history  and  upon  a 
uniform  assertion  of  state  policy  throughout  its  legislation. 

This  court  has  never  been  wanting  in  that  last  and  highest  at- 
tribute of  a great  court, — the  ability  and  the  disposition  to  recog- 
nize that  its  own  utterances  must  be  modified  from  time  to  time 
in  order  that  the  living  principle  of  the  law  may  keep  pace  with 
the  growing  and  changing  necessities  of  society. 

In  this  very  field  of  navigation,  this  court  has  shown  its  ability 
and  disposition  to  reject  the  narrow  restrictions  of  a former  age. 
Its  abandonment  of  the  tide-water  test  after  it  had  repeatedly  given 
expression  thereto,  is  a signal  instance  of  the  exercise  of  this 
power  by  this  court. 

The  action  of  the  Federal  Court  has  been  equally  inspired  by 
an  appreciation  of  the  needs  of  society. 

In  Genesee  Chief  v.  Fitzhugh,  12  Howard,  443  (1851),  the  Su- 
preme Court,  by  Taney,  C.  J.,  in  the  case  of  a collision  on  Lake 
Ontario,  held  that  the  inland  lakes  and  navigable  waters  connect- 
ing them,  were  within  the  scope  of  the  admiralty  and  maritime 
jurisdiction  conferred  upon  congress  by  the  constitution,  as  that 
jurisdiction  was  known  and  understood  in  the  United  States  when 
the  Constitution  was  adopted,  and  the  Court  rejected  the  doctrine 
that  such  admiralty  jurisdiction  was  confined  to  waters  in  which 
the  tide  ebbed  and  flowed. 

In  so  doing  they  overruled  their  own  former  decision  in  the 
Thomas  Jefferson  case,  10  AVheaton,  428,  decided  in  1825,  and  in 
which  the  opinion  was  delivered  by  Mr.  Justice  Story.  That 
early  case  had  denied  the  admiralty  jurisdiction  in  a suit  for 
wages  on  a voyage  up  the  Mississippi  Eiver. 

And  that  early  case  had  been  followed  in  the  case  of  the  Steam- 
hoat  Orleans  in  1837,  11  Peters,  175,  which  involved  a claim  for 


921 


partition  by  a part  owner  by  an  admiralty  sale,  and  claims  for 
wages  by  sailors  upon  boat  navigating  the  Mississippi.  Tiie 
opinion  in  that  (*ase  was  by  Mr.  Justice  Story.  The  court  in  1851 
embraced  three  of  the  seven  judges  who  liad  united  in  the  decision 
in  the  11  Peters.  The  Court  in  the  Genessee  Chief  case  said,  page 
456 : 

‘Mt  is  the  decision  in  the  case  of  the  Thomas  Jefferson 
which  embarrasses  the  court  in  the  present  inquiry.  We  are 
sensible  of  the  great  w^eight  to  which  it  is  entitled.  But  at 
the  same  time  we  are  convinced  that,  if  we  follow  it,  we  fol- 
low an  erroneous  decision  into  which  the  court  fell,  when  the 
great  importance  of  the  question  as  it  now  presents  itself 
could  not  be  foreseen;  and  the  subject  did  not  therefore  re- 
ceive that  deliberate  consideration  which  at  this  time  would 
have  been  given  to  it  by  the  eminent  men  who  presided  here 
when  that  case  was  decided.  For  the  decision  was  made  in 
1285,  ivhen  the  commerce  on  the  rivers  of  the  ivest  and  on  the 
lakes  ivas  in  its  infancy,  and  of  little  importance,  and  but 
little  regarded  conipared  with  that  of  the  present  day. 

‘^Moreovejv^  the  nature  of  the  questions  concerning  the  ex- 
tent of  the  admiralty  jurisdiction , ivhich  have  arisen  in  this 
court,  ivere  not  calculated  to  call  its  attention  particularly  to 
the  one  ive  are  now  considering . 

‘‘The  point  in  dispute  has  generally  been,  whether  the 
jurisdiction  was  not  as  limited  in  the  United  States  as  it  was 
in  England  at  the  time  the  Constitution  was  adopted.  And 
if  it  was  so  limited,  then  it  did  not  extend  to  contracts  for 
maritime  seiwices  when  made  on  land;  nor  to  torts  and  col- 
lisions on  a tide-water  river,  if  they  took  place  in  the  body  of 
a country.  The  attention  of  the  court,  therefore,  in  former 
cases,  has  been  generally  strongly  attracted  to  that  question, 
and  never,  we  believe,  until  recently,  drawn  to  the  one  we  are 
now  discussing,  except  in  the  case  of  the  Thomas  Jefferson, 
afterwards  followed  in  the  steamboat  Orleans  v.  Phoebus,  as 
already  mentioned.  For,  with  this  exce])tion,  the  eases  al- 
ways arose  on  contracts  for  services  on  tide-water,  or  were 
upon  libels  for  collisions  oi*  other  torts  committed  within  the 
ebb  and  flow  of  the  tide.  There  was  therefore  no  necessity 
for  inquiring  whether  the  jurisdiction  extended  further  in  a 
public  navigable  water.  And  following  the  English  defini- 
tion, tide  was  assumed  and  spoken  of  as  its  limit,  although 
that  particular  question  was  not  before  the  court. 

“The  distinction  would  be  purely  artificial  and  arbitrary 
as  well  as  unjust,  and  would  make  the  Constitution  of  the 


United  States  subject  one  part  of  a })u})lic  river  to  the  juris- 
diction of  a court  of  the  United  States,  and  deny  it  to  another 
l)art  e(iually  i)u])lic  and  luit  a few  yards  distant. 

It  is  evident  tliat  a definition  that  would  at  tiiis  day  limit 
])ul)rK‘  rivers  in  this  country  to  tide-water  rivers  is  utterly  in- 
admissible. AVe  have  thousands  of  miles  of  public  navigable 
water,  including  lakes  and  rivers  in  which  there  is  no  tide.” 

In  GihJ)ons  v.  Ofjden,  0th  AVheaton,  1 to  240  (1824),  the  Court 
decided  that  the  acts  of  the  legislature  of  New  York  granting  to 
liOBEUT  1C  Livingston  and  Kooert  Fulton  the  exclusive  naviga- 
tion of  all  the  waters  within  the  jurisdiction  of  the  State  with 
boats  moved  with  tire  or  steam  for  a term  of  years,  was  repugnant 
to  the  clause  of  the  Constitution  of  the  United  States  which  au- 
thorizes Congress  to  regulate  commerce,  in  so  far  as  such  acts 
prohibit  vessels  licensed  according  to  the  laws  of  the  United  States 
for  carrying  on  a coasting  trade,  from  navigating  those  Xew  York 
waters  l)y  means  of  fire  oi*  steam. 

Afr.  Emmett,  counsel  for  the  Livingstons  and  Fultons,  argued 
that  this  grant  was  a contract  (see  p.  81)  ; that  there  were  in  all 
six  consecutive  and  deliberate  acts  of  the  judges  of  the  courts  of 
Xew  A"ork  sitting  as  a council  of  revision,  ajiproving  these  grants 
and  contracts  (see  pp.  81  and  82);  that  these  grants  had  been 
made  in  1798  and  liad  continued  until  1811,  and  that  similar 
grants  had  been  made  in  Alassachusetts,  Xevc  Hampshire,  Penn- 
sylvania, Georgia  and  Tennessee  (see  pp.  82  and  83)  ; and  after  a 
glowing  picture  of  the  benefits  to  mankind  from  these  inventions 
which  he  claimed  had  been  specially  fostered  and  developed  by 
means  of  these  grants.  He  said : 

^LAnd  it  is,  after  all  those  advantages  have  been  acquired 
and  realized  to  the  world — after  numerous  individuals  have 
embarked  their  fortunes,  on  the  faith  of  those  grants,  and  a 
ten  years  acquiescence  in  the  decision  by  which  they  were 
sanctioned — after  the  property  they  have  created  has  been 
diffused  among  a multitude  of  possessors— after  it  has  become 
the  sole  support  of  the  widow  and  the  orphan — after  it  has  re- 
ceived and  exhausted  tlie  accumulated  savings  of  the  labori- 
ous and  industrious  heads  of  families,  that  a decision  is  re- 
quired, which  cannot,  indeed,  undo  the  lasting  benefits  already 
procured  to  the  world,  but  would,  assuredly,  undo  many  of 


ilioso  wlio  luivo  ('oiiHdod  their  wc'nitli  niid  iJUiatis  to  tli(‘  slahil- 
ity  and  obscM’vaiu'o  of  tliose  laws.” 

The  eonvt  deeided,  on  |)aj^e  189,  that  the  power  regnlatini^  eoni- 
ineree  extended  to  tlie  regulation  of  navigation,  and  on  pages  19d, 
194,  to  every  form  of  commercial  enterprise,  and  to  commerc'e 
wliicli  is  completely  internal  within  a vState,  and  that  the  power 
to  regulate  commerce  extends  (p.  125)  to  navigation  carried  on  l)y 
vessels  exclusively  employed  in  the  transporting  of  passengers. 

The  court  said : 

^‘The  boats  of  the  appellant  were,  we  are  told,  employed  in 
the  transportation  of  passengers;  and  this  is  no  part  of  that 
commerce  which  Congress  may  regulate.  * * * coast- 

ing vessel  employed  in  the  transportation  of  passengers,  is 
as  much  a portion  of  the  American  marine,  as  one  employed 
in  the  transportation  of  a cargo;  and  no  reason  is  perceived 
why  such  vessel  should  be  withdrawn  from  the  regulating 
power  of  that  government,  which  has  been  thought  best  fitted 
for  the  purpose  generally.” 

This  case  is  important  to  the  present  discussion.  It  excludes 
absolutely  the  contention  of  the  defendant  that  boats  must  he 
carrying  freight  in  order  to  he  engaged  in  navigation.  And  it 
excludes  absolutely  the  idea  that  large  investments  made  in  good 
faith  and  for  ])eneficial  ])urposes  constitute  a reason  for  abridg- 
ing the  powers  of  the  government. 

(This  court  here  knows  that  whatever  investment  the  defendant 
made  was  not  sufficient  to  enable  it  to  ^ffinance  the  work”  of 
building  the  dam.  See  its  suggestions  filed  October  15,  1908,  in 
this  court  in  opposition  to  the  motion  for  time  to  file  abstracts  and 
briefs.) 

Again,  it  was  contended  for  the  defendant  in  Gibhons  v.  Ogden 
that  this  form  of  navigation  by  steam  was  a netv  thing,  that  it  was 
not  included  within  the  very  general  expressions  of  the  constitu- 
tion and  the  power  to  regulate  commerce;  that  this  new  and  im- 
proved method  of  navigation  changing  the  state  of  the  art  and 
revolutionizing  the  methods  of  navigation,  was  not  within  the 
puiwiew  of  the  Constitution;  that  therefore  navigation  by  steam 
was  a different  thing  from  the  navigatioii  embraced,  ivitliiu  the 
commerce  clause  of  the  Constitution. 


924 


So  liere  it  ]ias  been  eontended  contra  that  navigation  by  the 
modern  motor  boat  was  smaller  on  the  one  band,  and  navigation 
by  steam  vessels  was  larger  on  the  other,  than  the  navigation  con- 
templated by  the  Ordinance  of  1787.  The  decision  of  the  court  in 
Gibbons  v.  Ogden  (pp.  219-220),  disposed  of  both  of  these  conten- 
tions, that  great  organic  general  provision  extended  to  all  the 
future  develojanents  of  the  art,  large  and  small.  The  court  said: 

‘^That  subject  is  left  entirely  to  individual  discretion;  and, 
in  that  vast  and  complex  system  of  legislative  enactment  con- 
cerning it,  which  embraces  everything  that  the  Legislature 
thought  it  necessary  to  notice,  there  is  not,  ive  believe,  one 
ivord  respecting  the  peculiar  principle  by  ivhich  vessels  are 
propelled  through  the  water,  except  what  may  be  found  in  a 
single  act,  granting  a particular  privilege  to  steam  boats. 
With  this  exception,  every  act,  either  prescribing  duties,  or 
granting  privileges,  applies  to  every  vessel,  whether  navi- 
gated by  the  instrumentality  of  wind  or  fire,  of  sails  or  ma- 
chinery. The  whole  weight  of  proof,  then,  is  thrown  upon 
him  who  would  introduce  a distinction  to  which  the  words  of 
the  law  give  no  countenance.  ’ ’ 

^‘The  one  element  may  be  as  legitimately  used  as  the  other, 
for  everv  commercial  purpose  authorized  by  the  laws  of  the 
Union.  ^ 

(The  expansion  of  commerce  by  the  motor-boat  is  within  the 
protection  of  this  decision.) 

And  Mr.  Justice  Johxsox,  in  his  separate  concurring  opinion, 
added : 

^‘The  grant  to  Livingston  and  Fulton  interferes  with  the 
freedom  of  intercowrse  among  the  states,  and  on  this  principle 
its  constitutionality  is  contested.  When  speaking  of  the 
power  of  Congress  over  navigation  I do  not  regard  it  as  a 
power  incidental  to  that  of  regulating  commerce,  I consider 
it  as  the  thing  itself,  inseparable  from  it  as  vital  motion  is 
from  vital  existence.” 

The  Wheeling  Bridge  case,  L3  Howard,  settled  the  law  that  the 
navigable  character  of  a stream  is  a matter  both  of  science  and  of 
history,  and  in  reaching  a decision  thereon  the  court  will  exercise 
its  own  wide  knowledge  both  of  science  and  of  history.  They 
said:  ‘‘That  the  Ohio  Liver  is  a navigable  one  is  an  historical 
fact  which  all  courts  will  recognize.” 

And  this  was  the  stream  which  had  in  it  a fall  of  twenty-six 


I'oet  ill  loss  tliaii  two  miles,  and  in  wliioli  liio  water  annually 
readied  siicli  a stage  tliat  the  early  navigators  in  their  hatteaux 
had  to  get  out  and  wade  and  pnll  their  lioats  over  tlie  liare  rock, — 
a stream  wliicli  in  the  last  season,  in  spite  of  the  expenditure  of 
millions  for  its  improvement,  fell  to  a depth  of  barely  eight  inches. 

In  the  Montello  case,  20  Wallace,  430,  the  Federal  court  showed 
its  ability  and  disposition  to  recognize  the  claims  of  history  and 
the  needs  of  society,  and  to  overcome  the  ^‘difficulties,”  “obstruc- 
tions,” “interferences”  and  “impracticable  passes”  suggested  in 
the  law,  just  as  effectually  as  the  early  navigator  overcame  them 
in  the  streams  of  the  Northwest  Territory. 

The  case  of  the  Genesee  Chief,  12  Howard,  443,  showed  a signal 
capacity  of  the  court  to  correct  former  expressions  not  adapted 
to  the  condition  of  the  country,  to  the  character  and  habits  of  our 
people,  nor  to  the  needs  of  future  development. 

The  case  of  Gibbons  v.  Ogden,  in  9th  Wheaton,  recognized  the 
necessity  of  putting  aside  any  narrow  and  technical  definition  of 
commerce  as  a subject  of  navigation,  and  broadened  it  out  to  in- 
clude all  human  intercourse  by  means  of  navigable  waters.  The 
commerce  which  is  an  element  of  navigation  is  not  simply  the 
carrjdng  of  freight.  It  is  any  form  of  human  intercourse  effected 
by  water  transportation. 

And  the  Montello  case,  20  Wallace,  settled  the  law  that  the  ex- 
istence of  such  difficulties,  obstructions,  portages,  and  imprac- 
ticable passes,  did  not  deprive  a stream  of  navigability.  The 
proof  in  the  case  at  l)ar  makes  it  clear  that  the  difficulties  sug- 
gested to  exist  in  the  Des  Plaines  are  slight,  compared  with  those 
upon  the  Fox  Piver  which  was  the  subject  of  that  case,  and  upon 
most  of  our  smaller  rivers;  and  makes  it  clear  that  none  of  the 
navigable  streams  of  the  country  are  free  from  tliese  same  diffi- 
culties, that  the  largest  streams,  like  the  Mississippi  and  the  Ohio, 
have  also  been  marked  by  the  greatest  difficulties,  and  that  it  is 
one  of  the  important  objects  of  our  governments,  state  and  na- 
tional, to  conserve  these  highways  of  nature,  to  remove  their  dif- 
ficulties and  obstructions,  and  to  promote  their  use  in  the  human 
intercourse  by  which  and  for  which  the  States  exist. 


And  foi-  these  reasons  we  resi)eeif'nlly  sn})mit  tluit  the  decree 
l)el()w  si  ion  Id  he  reversed. 

Kespectfnlly  snl)initted, 

WiLiJAM  H.  Stead^ 

Attorney  General. 
Walter  Heeves, 

Merritt  Starr^ 

Special  Counsel  for  The  People. 

Peck^  Miller  k Starr^ 

Peeves,  Osborn  & Griggs, 

Of  Counsel  for  The  People. 


APPENDIX. 


PAGE 

I.  Opinion  of  Trial  Court  - - - - 1 

II.  Monographs  of  Dr.  W.  F.  Poole  and  Gover- 

nor Edward  Coles  -----  9 


III.  Early  Documents 


19 


A. 


• * 


! % 


M. 


t 


/ • 


■4k 


■'± 


1^, 


APPENDIX  I. 


Decision  by  Trial  Court,  Mack,  J.,  June  25,  1908. 

We  li  ave  been  with  this  case  so  long  that  the  only  purpose  of 
further  consideration  before  delivering  an  opinion  would  be  to 
enable  the  Court  to  formulate  an  opinion  more  concisely  and  with 
the  citation  of  evidence  or  law  such  as  is  iinpossible  in  rendering 
an  opinion  at  the  conclusion  of  the  argument.  But  as  the  views 
of  the  Court  are  sufficiently  clear  on  the  evidence  and  the  law  to 
enable  him  to  render  an  opinion  at  this  time,  I deem  it  my  duty 
not  to  delay  for  the  purpose  of  clearer  or  more  exact  formulation 
of  the  various  points  raised  in  the  case,  and  that  should  be  decided, 
or  to  enable  the  Court  more  thoroughly  to  digest  all  of  the  evidence. 

I have  listened  carefully  to  the  evidence  as  it  was  given  and  as 
it  was  read,  and  have  been  weighing  it  in  my  mind  ever  since.  I 
have  carefully  examined  the  United  States  Supreme  Court,  and 
the  Illinois  cases  that  have  been  cited,  not  carefully  the  cases  in 
the  other  jurisdictions. 

It  seems  to  me  that  the  fundamental  point  on  which  the  (‘ase  of 
the  State  was  made,  was  that  on  which  the  Chuirt  has  already  ex- 
jiressed  an  opinion,  as  to  the  ownership  of  the  bed  of  the  stream, 
incident  to  the  ownership  of  the  land  without  the  meander  line. 
The  conclusion  of  the  Court,  based  both  on  the  ])ractical  construc- 
tion given  by  the  Commissioners  for  sixty  or  seventy  years  and 
never  disputed  so  far  as  the  evidence  shows,  as  well  as  on  the  inde- 
])endent  construction  that  the  (h)urt  would  give  to  the  Act  of  1859 
and  the  later  Acts  and  their  effect  on  the  Act  of  1889,  is  as  hert^- 
tofore  stated,  that  that  ])ro vision  in  the  Act  of  1889  affected  only 
conveyances  made  under  that  Act  and  did  not  affect  conveyances 
made  under  the  Act  of  1848  and  subsecpient  legislation.  That  while 
the  section  in  the  Act  of  1889  did  lay  down  a general  rule  for  the 
construction  of  ('onveyaiu'es,  and  did  ex])ress  a ])urpose  on  the 
])art  of  the  State  to  retain  the  ownership  of  these  lands  without 


9 


tlio  line,  y(‘t  by  fhe  voiy  teiins  of  the  section  of  this  Act 

the  conditions  of  conveyances  were  limited  by  tlie  Act  in  express 
langnao(.  to  conveyances  made  under  the  provisions  of  that  Act. 
'Die  Act  of  IHdd  changed  the  entire  i)a.]icy  of  tlie  State  with  refer- 
ence to  tlie  canal.  It  was  due  to  a change  in  condition  that  ren- 
deied  it  necessary  for  the  State  to  yield  up  its  riglit  and  power  for 
the  purpose  of  raising  money  to  complete  the  canal.  The  power 
of  sale  granted  to  the  Trustees  contains  no  such  limitations  as 
that  theretofore  placed  on  the  Commissioners.  Apart  from  any 
question  of  repeal  by  implication,  it  seems  to  the  Court  that  the 
Act  of  1839  no  longer  controls  the  sales  made  under  the  Act  of 


1843.  So  the  main  position  of  the  State  based  on  the  ownership 
of  these  lands,  which,  if  it  had  been  maintained,  would  have  given 
the  State  this  water  power,  is  lost  by  reason  of  the  decision  of  the 
Court  against  the  State  on  that  point. 

Now,  whether  the  river  be  navigable  or  not  navigable  at  any 
time,  the  ownership  of  the  land  in  the  bed  of  the  river  and  every 
possible  right  in  and  to  the  water  of  the  river  and  the  land  is,  under 
the  law  of  Illinois,  in  the  owner  of  the  land  bordering  on  the  river, 
subject  only  to  one  right  on  the  part  of  the  public,  the  right  of 
navigation  in  case  the  stream  be  navigable.  And  the  only  right 
of  the  State  to  interfere  with  the  defendants,  apart  from  any  ques- 
tions as  to  the  effect  of  the  Canal  statutes  and  the  contracts  and 
the  ownership  of  the  towpath,  would  be  to  prevent  a nuisance.  The 
only  nuisance  that  could  be  created  by  these  works,  that  could  be 
claimed  to  be  created  by  these  works,  would  be  an  obstruction  to 
navigation. 

I believe  under  the  decision  in  the  Carpenter  case  in  the  68  Wis., 
that  apart  from  any  question  of  navigability  or  non-navigability  of 
the  river,  in  the  present  condition  of  that  river  as  to  actual  navi- 
gation, this  bill  would  have  to  be  dismissed  on  the  ground  that 
there  is  no  obstruction  to  navigation,  even  though  that  which  is 
there  being  done  might  be  an  obstruction  to  future  navigation  if 
the  river  were  considered  navigable.  But  even  in  that  event  I 
should  deem  it  my  duty  to  dismiss  the  bill  without  prejudice  to  the 
right  of  the  State  to  renew  its  application  for  an  injunction  if 
navigation  actually  took  place  in  that  part  of  the  river  and  if 
thereby  these  works  became  an  obstruction  to  actual  navigation. 


But  I do  not  believe  Hint  it  would  lie  rigid  to  sto[)  lieni,  nfter 
the  tlioroiigli  presentntion  of  the  evidence,  and  the  thorough  argu- 
ment of  tlie  questions  involved.  I believe  it  is  the  duty  of  the 
Court  to  go  further  and  not  to  dismiss  the  bill  on  a narrow  ground 
such  as  that  which  is  just  suggested,  namely,  that  there  is  at  present 
no  navigation,  and  that  therefore  at  the  present  time,  there  could 
be  no  obstruction  to  navigation.  I believe  it  is  the  duty  of  the 
Court  to  decide  the  broad  question  as  to  whether  or  not  this  stream 
is  a navigable  stream. 

Whatever  the  Court  might  think  ought  to  be  the  definition  of  a 
navigable  stream  I am  again  bound  by  the  decison  of  the  Supreme 
Court  of  Illinois.  In  the  Schulte  case,  218  HI,  it  lays  down  the  rule, 
as  do  the  earlier  decisions.  If  this  river  in  its  natural  condition, 
in  its  ordinary  stage  of  water,  was  susceptible  of  navigation,  even 
though  it  might  have  obstructions  in  it,  if  it  was  susceptible  of 
navigation,  not  merely  canoe  navigation  for  hunting  and  fishing 
as  the  Supreme  Court  says  in  the  218,  but  susceptible  of  navigation 
for  commercial  purposes  for  the  products  that  might  be  raised 
along  the  banks,  or  for  the  distribution  of  merchandise  to  the 
people  along  the  banks,  or  as  a connecting  link  between  the  larger 
towns  above  and  below  it,  it  would  be  a navigable  stream. 

The  burden  is  on  the  State  to  establish  that  it  is  a navigable 
stream.  My  judgment  on  the  evidence  is  that  that  burden  has  not 
been  sustained.  My  judgment  on  the  evidence  is  that  the  contrary 
has  been  sustained,  that  the  Des  Plaines  Eiver,  even  though  there 
might  have  been  some  slight  use  of  it  down  stream  on  rare  occa- 
sions, would  not  be  deemed  and  could  not  be  deemed  at  any  time 
in  its  history,  either  in  1787  or  earlier,  a navigable  stream  within 
the  definition  laid  down  by  our  Supreme  Court.  The  conditions  as 
to  the  amount  of  water,  the  declivity,  sinuosity,  the  bed  of  the 
river,  rocks,  boulders,  the  length  of  the  river,  are  totally  ditferent 
from  those  of  some  of  the  other  rivers  that  in  some  respects  are 
navigable  streams.  Even  though  some  other  rivers  may  under 
some  conditions  be  navigated  on  the  amount  of  water  that  possibly 
does  exist  for  some  part  of  the  year  in  this  river,  the  testimony  of 
experts  as  to  those  other  rivers  does  not  convince  the  Court  that 
the  Des  Plaines  is  or  was  navigable  in  the  sense  used  by  the  Su- 
preme Court. 


4 


As  to  the  effect  of  the  Sanitary  District  Act  of  1889— tlie  Act 
provides  for  damages,  for  com})ensation,  damages  suffered  by  the 
overflowing  of  ])roperty  tlirough  these  Sanitary  works.  But  some- 
thing mucli  more  tlian  a mere  overflowing  or  other  damage  would 
liave  to  be  found  before  the  people  of  the  State  could  claim  the 
right  to  navigate  that  river.  The  mere  fact  that  by  reason  of  the 
('onsti'uction  of  the  Sanitary  District  and  the  flowing  of  these  waters 
tliei'e  may  now  l)e  sufficient  water  to  enable  navigation  to  be  car- 
ried on  in  the  river,  and  the  fact  that  the  State  has  put  or  caused 
those  waters  to  be  put  there,  and  the  further  fact  that  the  State 
lias  provided  that  owners  of  rights  or  property  who  are  damaged 
by  overflow  or  otherwise,  may  recover  their  damages  from  the 
Sanitary  District,  does  not,  to  my  mind  indicate  that  the  State  has 
even  attempted  (diregarding  the  question  of  constitutional  law  of 
whether  it  could  or  could  not  take  without  prior  compensation 
paid,) — has  even  attempted  to  take  from  the  owners  of  that  prop- 
erty an  easement  of  navigation  for  the  public. 

The  whole  spirit  of  the  Act  of  1889  seems  to  negative  any  such 
construction  because  I agree  with  the  construction  of  the  defend- 
ant that  navigability  of  the  channel  means  navigability  of  the 
Drainage  channel  and  nothing  else.  The  State  has  not  attempted 
to  declare  in  so  many  words,  or  in  effect  that  the  public  shall  have 
the  right  to  navigate  because  in  fact  there  may  now  be  water  there 
sufficient  to  enable  navigation  to  be  carried  on.  And  therefore, 
in  my  judgment,  the  easement  of  navigation  has  not  been  attempted 
to  be  created  by  the  Legislature  over  these  lands.  I think  it  would 
take  further  action  on  the  part  of  the  Legislature  and  the  courts 
before  the  public  could  acquire  the  easement  of  navigation  in 
what  may  now  be  a stream  capable  of  being,  navigated  but  which 
before  the  new  waters  were  poured  in,  was  a non-navigable  stream. 

Now,  as  to  the  effect  of  the  dealings  with  the  Canal  Commis- 
sioners. While  it  may  be  premature  to  pass  judgment  on  the 
validity  of  the  option  clause  in  the  lease,  yet  in  view  of  the  thor- 
ough argument  of  the  question  I cannot  refrain  from  expressing 
an  opinion  that  I cannot  see  any  basis  in  the  law  for  that  option 
clause.  But  whether  that  clause  be  valid  or  invalid,  the  State 
would  have  no  right  to  interfere.  If  it  be  invalid  it  does  not  affect 
the  lease  itself.  It  is  not  an  integral  part  of  the  lease;  if  null  and 


void  ns  boiiio-  beyond  the  ])0Wer  of  the  ('oniinissioners  lo  niak(^, 
the  entire  instrnnient  must  not  be  deelared  void,  l)eeanse  tli(‘  k^ase. 
is  made  se])arate  and  distinct  from  this  (‘lanse.  The  $500  ii»  dis- 
tinctly expressed  to  be  tlie  consideration  for  tlie  lease  for  twenty 
years,  and  the  lease  for  twenty  years  is  distinctly  granted  for  the 
consideration  of  $500  paid.  When  in  the  lease  there  are  contained 
mntnal  covenants,  each  being  the  consideration  for  the  other,  tlie 
one  that  the  lessee  will  take  over  at  that  price  for  a subsequent 
term  if  it  be  given  to  him,  and  the  other  that  it  will  be  given  as 
against  any  other  bidder  at  the  same  price  if  it  be  decided  to  lease 
at  all.  -That  is  merely  a bi-lateral  contract  injected  into  the  lease. 
Standing  on  its  own  consideration  it  has  'nothing  to  do  with  the 
consideration  named  in  the  lease,  and  for  that  reason  it  cannot  be 
held  to  affect  in  any  manner  the  lease  itself.  If  that  option  clause 
be  void,  and  as  I said,  the  Court  is  of  the  opinion  that  it  is  void, 
no  rights  could  be  acquired  under  it,  and  after  the  end  of  twenty 
years,  so  far  as  the  rights  of  the  tenant  depend  upon  the  clause 
in  lease,  if  any  attempt  should  be  made  to  carry  them  out,  the 
State  would  have  its  remedy,  and  to  guard  against  any  possibility 
the  other  way,  that  right  may  be  preserved  in  the  decree. 

Now  as  to  the  interpretation  of  the  lease  and  the  flowage  con- 
tract ; in  my  judgment  these  two  documents  are  distinct  and  sepa- 
rate; they  were  intended  to  be  distinct  and  separate.  They  were 
so  intended  by  the  parties,  and  they  use  express  language  which 
clearly  indicates  this.  They  are  two  separate  documents,  botli 
sealed  instruments,  and  that  as  a matter  of  common  law  would 
make  them  separate  and  distinct  deeds.  Then  the  second  instru- 
ment refers  in  terms  -to  the  first  and  charges  the  grantee  expressly 
with  knowledge  of  it.  There  would  be  no  need  of  charging  the 
grantee  with  knowledge,  particularly  as  the  grantee  was  the  same 
person,  if  they  were  intended  to  be  constructed  together.  The  very 
fact  that  he  is  expressly  charged  with' knowledge  of  another  in- 
strument in  the  making  of  a second  instrument,  is  to  my  mind 
clear  evidence  that  the  parties  intended  that  the  instruments  should 
be  separate  and  distinct,  both  being  assignable  in  their  nature. 
But  when  it  comes  to  the  rights  of  the  lessee  under  the  lease,  and 
the  effect  of  the  absence  of  any  limitation  in  the  lease  on  the  use 
to  which  the  property  shall  be  put,  the  Court  is  of  the  opinion. 


first,  that  at  ('oininon  law  the  only  limitation  on  the  ri^lit  of  the 
defendant  would  be  tliat  it  do  not  commit  waste,  and  second,  the 
reference  in  the  lease  to  the  first  a^i;’reement,  wlietlier  it  be  a valid 
or  void  agreement,  shows  clearly  that  the  lessor  had  in  mind  the 
jmrposes  for  which  this  property  was  to  be  used,  and  was  not  un- 
willing that  it  should  be  used  for  the  purposes  stated  in  the  con- 
tract. And  if  there  were  any  doubt  as  to  the  powers  of  the  lessee, 
unless  there  be  a clear  rule  of  law  that  in  the  absence  of  a speci- 
fication of  the  use,  such  a use  as  is  here  contemplated  is  impossible, 
the  surrounding  circumstances  may  be  looked  to  for  guidance,  and 
these  show  that  the  intention  of  the  parties  was  that  the  property 
was  to  be  used  under  this  lease  for  flowage  purposes. 

I hold  therefore,  that  under  the  lease  the  lessee  and  his  assigns 
have  the  right  to  overflow  the  property  thereby  leased  and  to  at- 
tach the  dam  to  the  tow-path,  there  being  nothing  in  the  lease  in- 
consistent with  this  right. 

As  to  the  contract  itself,  there  being  no  limitation  of  time,  it 
seems  to  me  that  it  is  an  attempt  on  the  part  of  the  Commis- 
sioners to  grant  a right  in  perpetuity  to  Griswold  and  his  assigns 
to  overflow  the  land;  and  the  grant  of  such  a right  in  perpetuity 
is  equivalent  to  the  sale  of  an  interest  in  the  land,  the  sale  of  the 
easement,  and  that  such  sale  of  the  easement  is  beyond  the  power 
of  the  Trustees  because  they  could  not  make  any  sale  at  all  of 
the  90-foot  strip.  So  far  as  the  balance  of  the  property  is  con- 
cerned, outside  of  the  90-foot  strip,  the  State  could  not  complain 
because  they  are  no  longer  owners  of  the  property.  That  land  has 
been  sold,  and  whether  the  auction  had  been  conducted — I didn’t 
think  that  question  was  raised  again  in  argument;  it  was  raised 
before  argument, — by  a clerk  or  by  the  secretary,  the  sale  having- 
been  made  in  accordance  with  the  law,  and  the  law  not  specifying 
that  the  Commissioners,  or  one  of  them  shall  be  the  auctioneer,  but 
merely  specifying  that  the  sale  shall  be  by  public  auction  to  the 
best  bidder,  I believe  a sale  so  conducted  by  auction  to  be  valid.  It 
is  not  like  a grant  of  property  in  trust  to  the  Trustee  with  specific 
power  to  him  to  sell  at  private  sale  or  auction,  which  contemplates 
that  he  shall  make  the  sale,  and  which  therefore  requires  his  actual 


])roseiK*t\  tlie  law  'simply  says,  ^‘Tlie  land  shall  lx;  sold  at  i)ul)li(‘ 
aiudion  to  the  lii^hest  and  host  bidder.” 

As  to  the  aqueduct  and  the  feeder  I believe  in  the  first  place 
that  the  aqueduct  has  been  long  since  abandoned.  Whether  the 
(hinal  Commissioners  at  the  time  of  the  abandonment  had  the 
power  to  abandon  it  or  not,  the  actual  abandonment  has  been  long 
acquiesced  in.  There  is  no  question  of  the  twenty-year  statute  of 
limitation  or  any  acquisition  of  adverse  rights  by  others  involved 
in  the  case.  There  is  the  mere  fact  of  abandonment  or  non-use  of  it. 
The  Trustees  or  Commissioners  were  empowered  to  manage  and 
control  the  property.  The  testimony  is  unanimous  that  the  proper 
.control  and  management  of  this  property,  the  proper  management 
of  that  canal  does  not  involve  the  keeping  up  of  this  aqueduct  to 
feed  it,  and  I believe  therefore  that  the  Trustees  were  not  going 
beyond  their  power  when  they  permitted  this  aqueduct  to  go  into 
non-use.  But  the  'situation  in  1904  was  that  there  was  no  use  for 
that  aqueduct,  that  it  was  of  absolutely  no  use  to  the  canal;  and 
while  the  Canal  Commissioners  of  the  State  had  the  legal  title  to 
the  stones  that  constitute  the  abandoned  and  broken  down  piers, 
the  mere  taking  up  of  those  stones  and  putting  them  some  place 
else  comes,  in  my  judgment,  within  the  reasonable  power  of  the 
Canal  Commissioners.  If  they  liad  done  more  than  that  and  had 
given  them  away  to  the  defendant,  then  the  State  would  have  an 
adequate  remedy  at  la\y  for  any  damages  it  would  have  suffered 
in  that  resjoect.  This  would  be  so  too  as  to  the  ]n-ovision  for  the 
gravel  and  other  material.  As  a matter  of  fact,  under  the  con- 
tract it  was  not  given  away;  it  was  sim]:)ly  to  be  moved  and  used 
in  the  building  up  of  those  additional  two  feet  on  the  towpath  bank. 
It  was  the  property  of  the  State  and  remained  the  ])r()perty  of  the 
State.  The  Canal  Commissioners,  in  my  judgment,  had  the  power 
to  enter  into  a contract  of  that  kind,  to  ])ermit  defendant  to  take 
away  part  of  the  gravel  and  put  it  somewhere  else,  for  that  tended 
to  the  development  of  the  tow-path,  the  protection  of  the  canal,  and 
the  betterment  of  the  situation.  The  Chnnmissioners  had  the 
power.  Whether  they  used  the  power  wisely  or  not,  is  not  for  the 
Court  in  this  case  to  say. 

The  Court  regrets  as  much  as  (‘ounsel  for  the  State  that  many 


8 


of  the  natural  ri^lits  wliirli  could  be  utilized  for  tlie  benefit  of  the 
people  of  tlie  State  liave  not  been  i)reserved  by  tlie  State  but  have 
been  ^iven  away.  The  Court  regrets  particularly  that  since  pioneer 
days  and  even  today  rights  of  vast  value  to  the  x)ublic  are  fre- 
(luently  given  away  by  the  State,  government  and  municipalities, 
but  that  1 regret,  not  as  a judge  but  as  a citizen.  As  a judge  of 
course  I can  only  take  the  law  as  I find  it,  and  taking  the  law  as 
[ find  it,  it  is  the  opinion  of  the  C^ourt  in  this  case  that  the  bill 
should  be  dismissed  for  the  reasons  stated. 


APPENDIX  IT. 


HISTORY  OF  THE  ORDINANCE  OF  1787. 

1.  From  monograph  by  Dr.  Wm.  F.  Poole. 

2.  From  monograph  by  Governor  Edward  Coles. 

Dr.  William  Frederick  Poole,  for  many  years  librarian  of  the 
City  of  Chicago  and  of  the  Newberry  Library,  and  author  of 
Poole’s  Index  to  Periodical  Literatnre,  was  the  author  of  a valu- 
able work  entitled  ^^The  Ordinance  of  1787,  and  Dr.  Manasseh 
Cutler  as  an  Agent  in  its  Formation,”  which  was  published  in  122 
North  American  Review,  pages  122  et  seq.  From  this  work  we 
make  the  following  extracts : 

^‘The  Ordinance,  in  the  breadth  of  its  conceptions,  its  de- 
tails, and  its  results,  has  been  perhaps  the  most  notable  in- 
stance of  legislation  that  was  ever  enacted  by  the  representa- 
tives of  the  American  people.  It  fixed  forever  the  character 
of  the  immigration,  and  of  the  social,  political  and  educational 
institutions  of  the  people  who  were  to  inhahit  this  imperial 
territory.  * * * (p.  3.) 

Then,  after  an  abstract  of  the  Ordinance  : 

‘^Such  are  some  of  the  broad  and  enlightened  provisions 
which  have  made  the  Ordinance  of  1787  so  beneficent  and 
memorable.  They  entered  not  only  into  the  organic  laws  of 
the  territory,  but  were  made  perpetual  and  irrepealable.  When 
new  states  were  organized  on  this  territory  the  people  were  not 
left  with  the  discretion  of  accepting  or  discarding  the  pro- 
visions of  the  Ordinance  in  their  constitutions.  Its  vital  prin- 
ciples, some  of  which  have  been  enumerated,  were  embodied 
in  six  ^articles  of  compact  between  the  original  states  and  the 
people  and  states  of  said  territory,  and  forever  to  remain  un- 
alterable unless  by  common  consent.’  It  was  well  understood 
that  common  consent  to  any  material  change  could  never  be 
obtained.  No  other  instance  exists  in  American  legislation  of 
laws  enacted  under  the  form  of  ‘articles  of  compact,’  except  in 
the  ordinance  relating  to  this  same  territory  drawn  by  .Mr.  »Jef- 
ferson  in  1784.  * * * (p.  5.) 

“Judge  Timothy  Walker  of  Ohio,  in  an  address  delivered  at 
Cincinnati  in  1837,  said:  * * It  approaches  as  nearly 


to  ubsolnte  perfection  as  anything  to  he  found  in  tlie  legisla- 
tion of  mankind;  for  after  the  experience . of  fifty  years,  it 
would  ■i)erliaps  he  iinpossihle  to  alter  witliout  marring  it.  In 
short,  it  is  one  of  those  matchless  specimens  of  sagacious  fore- 
cast which  even  the  reckless  spirit  of  innovation  would  not 
venture  to  assail.  * * (p.  7.) 

‘‘Mr.  Chase,  late  Chief  Justice  of  the  United  States,  in  the 
introduction  to  his  ‘Statutes  of  Ohio,’  said:  ‘Never,  prob- 
ably, in  thQ  history  of  the  world,  did  a measure  of  legislation 
so  accurately  fulfil,  and  yet  so  mightily  exceed,  the  anticipa- 
tions of  the  legislators.  The  ordinance  has  well  been  de- 
scribed as  having  been  a pillar  of  cloud  by  day  and  of  fire  by 
night  in  the  settlement  and  government  of  the  Northwestern 
states.  * * (p.  8.) 

“Mr.  Webster,  in  the  speech  which  has  been  quoted,  as- 
cribed the  authorship  of  the  Ordinance  solely  in  Nathan  Dane 
of  Massachusetts,  and  this  has  been  the  commonly  received 
opinion  on  the  subject  since  that  time.  Mr.  Benton  of  Mis- 
souri, and  Mr.  Hayne,  promptly  challenged  the  accuracy  of 
the  statement  upon  the  spot.  * * * (P-  8-) 

“ ‘Mr.  Dane  was  no  more  the  author  of  that  Ordinance,  sir, 
than  you  or  I,  who  about  that  time  were  mewling  and  puking 
in  our  nurses’  arms.  That  Ordinance,  and  especially  the 
non-slavery  clause,  was  not  the  work  of  Nathan  Dane  of  Mas- 
sachusetts, but  of  Thomas  Jefferson  of  Virginia.’  * * * 

(p.  9.) 

“On  the  1st  of  March,  1784,  a committee  consisting  of  Mr. 
Jefferson  of  Virginia,  Mr.  Chase  of  Maryland,  and  Mr.  Howell 
of  Rhode  Island,  reported  an  ordinance  for  the  temporary  gov- 
ernment of  the  territory.  * * * (p.  11.) 

“It  proposed,  also,  five  ‘articles  of  compact,’  which  were 
quite  unlike  the  six  articles  in  the  ordinance  of  1787.  The 
fifth  article  was  as  follows:  ‘That  after  the  year  1800  of  the 
Christian  era,  there  shall  be  neither  slavery  nor  involuntary 
servitude  in  any  of  the  said  states,  otherwise  than  in  the  pun- 
ishment of  crimes,  whereof  the  party  shall  have  l)een  duly 
convicted  to  have  been  personally  guilty.’  * * * 

“Six  states  only  voting  for  Mr.  Jefferson’s  anti-slavery 
clause,  it  was  lost.  The  ordinance,  ^vithout  any  slavery  re- 
striction, passed  April  23,  1784,  and  was,  chiefly  from  the 
absence  of  such  a restriction,  a dead  letter.  No  settlement  of 
the  territory  was  made  under  it.  (p.  12.) 

“March  16,  1785,  eight  da^^s  after  the  date  of  Mr.  Picker- 
ing’s letter  just  quoted,  Mr.  King  of  Massachusetts,  seconded 
by  Mr.  Ellery  of  Rhode  Island,  moved  that  the  following  reso- 
lution be  committed : 

“ ^Resolved,  That  there  shall  be  neither  slavery  nor  involun- 
tary servitude  in  any  of  the  states  described  in  the  resolve  of 


11. 


Congress  of  tlie  2^(1  of  April,  1784,  otlierwise  than  in  tlio  pun- 
ishment of  crimes  wliereof  the  party  shall  have  been  personally 
guilty;  and  that  this  regulation  shall  he  an  article  of  compact, 
and  remain  a fundamental  principle  of  the  Constitution  be- 
tween the  thirteen  original  states,  and  each  of  the  states  de- 
scribed in  the  said  resolve  of  the  23d  of  April,  1784.’ 

Eight  states'  voted  to  commit,  and  three  states  (Virginia, 
North  Carolina  and  South  Carolina)  voted  in  the  negative. 
The  resolution  was  therefore  referred  to  the  committee  of  the 
whole,  there  being  no  committee  on  the  territories.  * * * 

The  resolution  went  to  the  committee,  and  was  never  called  up 
for  action  by  Mr.  King,  Mr.  Dane,  or  any  other  member ; and 
so  far  as  appears,  was  never  again  alluded  to.  * * * (pp. 

13-14.) 

‘^On  the  afternoon  of  July  5 a dusty  traveler,  in  the  garb  of 
a New  England  clergyman,  arrived  in  New  York  City  and 
drove  up,  in  his  one-horse  sulky,  to  the  ‘Plow  and  the  Harrow,’ 
a tavern  in  the  Bowery ; and  sent  his  horse  for  entertainment 
to  the  Bowery  ham's.  Twelve  days  before  he  had  left  his  home 
in  the  town  of  Ipswich,  in  the  eastern  part  of  Massachusetts, 
and  had  made  the  journey  in  his  private  carriage,  there  being 
no  public  conveyances  at  that  time.  His  business  in  New  York 
was  to  buy  of  Congress,  there  in  session,  a million  and  a half 
acres  of  land  in  the  Northwest  Territory  for  settlement  under 
the  auspices  of  the  ‘Ohio  Company  of  Associates.’  His  name 
was  Dr.  Manasseh  Cutler.  He  remained  in  New  York  and 
the  vicinity  about  three  weeks,  bought  liis  million  and  a half 
acres  for  tlie  Ohio  Com])any,  and  about  four  million  acres  for 
other  parties.  In  April  of  the  following  year  the  Ohio  Com- 
pany made  the  first  English  settlement  of  the  Northwest  Terri- 
tory at  Marietta,  Ohio,  at  the  mouth  of  the  Muskingum,  on  the 
land  which  Dr.  Cutler  had  bought  on  this  occasion.  General 
Mbishington,  writing  from  Mount  Vernon,  two  months  later, 
said:  ‘No  colony  in  America  was  ever  settled  under  such 
favorable  aus])ices  ns  that  which  has  just  commenced  at  the 
Muskingum.’  * * * (|)p.  20-21.) 

“Harvard  College  had  given  him  (Dr.  Cutler)  an  honorary 
degree  of  A.  M.,  and  Yale  college  the  degree  of  LL.  D.  Later 
Washington  appointed  him  Judge  of  the  Supreme  Court  of 
the  Northwestern  Territory,  which  honor  he  declined.  Pour 
years  he  was  a member  of  Congress  from  the  Essex  district 
of  Massachusetts,  and  a noted  speech  he  there  made  on  the 
subject  of  the  judiciary  indicates  the  class  of  subjects  he  was 
competent  to  treat.  * * * (p.  22.)  His  manners  particu- 

larly impressed  the  Southern  members,  with  whom  he  chiefly 
associated.  They  had  never  before  seen,  they  said,  such  quali- 
ties as  his  in  a Northern  man.  * * * 

“His  association  with  Southern  members  was  most  likely 


from  motives  of  policy.  Ife  needed  their  votes.  * * * 

(I..23.) 

‘‘It  was,  therefore,  Dr.  Cutler’s  policy  in  furtherance  of  his 
Western  project,  to  liold  liimself  somewhat  aloof  from  his  New 
Kng'land  associates,  and  to  cultivate  the  friendship  of  the 
Southern  members.  Nortliern  votes  he  could  get  when  he 
needed  them.  Col.  Carrington,  Kichard  Henry  Lee,  and  Mr. 
(trayson,  all  of  Virginia,  were,  as  appears  by  his  journal,  his 
warmest  friends  and  confidential  advisers.  * * * 24.) 

“With  all  his  yiersonal  accomplishments  and  the  spiritual 
graces  of  a New  England  clergyman,  he  had  a large  share  of 
worldly  wisdom.  His  journal  furnishes  evidence  that  the  arts 
of  the  lobbyist  were  not  invented  in  our  day.  In  his  business 
with  Congress  he  regarded  success  as  a duty.  He  found  it 
difficult  to  enlist  the  interest  of  General  St.  Clair,  the  Presi- 
dent of  Congress,  in  his  scheme.  He  found,  also,  that  General 
St.  Clair  wanted  to  be  Governor  of  the  Northwestern  Terri- 
tory; and  Dr.  Cutler,  representing  the  interests  of  the  Ohio 
Company,  intended  that  General  Parsons  of  Connecticut  should 
have  that  office.  But  he  must  have  General  St.  Clair’s  in- 
fluence, and  found  it  necessary  to  pay  the  price.  From  the 
moment  be  communicated  this  decision  General  St.  Clair  was 
warmly  engaged  in  his  interest,  and  the  General  ivas  the  first 
Governor  of  the  territory.  * * * (p.  24.) 

“ The  first  person  we  find  him  in  company  with  was  Colonel 
Carrington,  who  was  introducing  him  to  the  members  on  the 
floor  of  Congress,  just  before  the  session  of  the  day  began. 
He  then  delivered  his  petition  for  the  purcliase  of  land  in  the 
Northwest  Territory.  He  dined  that  day  with  Mr.  Dane  and 
Mr.  Milliken,  Comptroller  of  the  Treasury,  and  spent  the  even- 
ing with  several  members  of  Congress.  The  next  day  he 
made  the  acquaintance  of  Mr.  Hutchins,  Geographer  of  the 
United  States,  and  consulted  with  him  about  the  location  of 
the  purchase.  * * * (p.  25.) 

“The  chief  motive  of  the  Southern  members  in  voting  unani- 
mously for  the  Ordinance  was  doubtless  to  relieve  the  financial 
embarrassment  of  the  government,  and  to  bring  the  public 
lands  into  the  market  at  the  highest  price.  It  must  also  be 
borne  in  mind  that  there  was  then,  and  for  the  next  five  years, 
more  anti-slavery  sentiment  in  the  South  than  ever  existed 
there  before  or  since.  Mr.  Jefferson,  Patrick  Henry,  George 
Mason,  George  Wythe,  St.  George  Tucker,  and  other  promi- 
nent men  of  Virginia,  were  theoretically  pronounced  abolition- 
ists. ^ (p.  27.) 

“The  Ordinance  of  1787  and  the  Ohio  purchase  were  parts 
of  one  and  the  same  transaction.  The  purchase  ivoidd  not 
have  been  made  without  the  Ordinance,  and  the  Ordinance 
could  not  have  been  enacted  except  as  an  essential  condition 


13 

of  the  |)ureliase.  Botli  were  helore  (;\)ngress  and  under  ('on- 
sideration  at  the  same  time,  and  (Colonel  (yVirrington  was  the 
(‘hairman  of  the  committees  wliicli  reported  and  carried 
through  botli  measures.  The  dates  of  their  jiassage  were 
separated  by  an  interval  of  only  two  weeks.  The  Ordinani^e 
has  hitherto  been  treated  as  an  isolated  piece  of  legislation, 
and  as  such  it  has  been  a marvel  and  an  enigma.  When  con- 
sidered together,  every  fact  in  the  origin  and  passage  of  the 
Ordinance  is  explained,  and  is  found  to  be  connected  with  the 
agency  of  Dr.  Manasseh  Cutler.  * * * (p.  31.) 

Three  of  his  sons  came  to  Ohio  and  took  prominent  parts  in 
its  settlement.  Dl*.  Cutler  himself  never  removed  his  resi- 
dence from  Massachusetts.  He  came  to  Marietta,  in  his  sulky, 
on  a visit  of  inspection,  and  to  attend  a meeting  of  the  Direct- 
ors of  the  Ohio  Company,  in  the  summer  of  1788,  where  he  was 
honored  as  one  of  the  chief  promoters  of  the  enterprise.  He 
died  in  the  parish  where  he  had  been  the  settled  minister  for 
more  than  fifty- two  years,  July  28,  1823,  at  the  age  of  eight'y- 
one. 

‘‘His  eldest  son.  Judge  Ephraim  Cutler,  already  mentioned, 
was  a member  of  the  Territorial  Legislature,  Judge  of  the 
Court  of  Common  Pleas,  and  a member  of  the  Convention 
which  formed  the  Constitution  of  Ohio,  in  which  he  almost 
wholly  shaped  and  drafted  the  judicial  system  of  the  state,  and 
successfully  resisted  the  well  laid  scheme  of  setting  aside  the 
anti-slavery  provision  of  the  Ordinance.  He  was  later  a mem- 
ber of  the  State  Legislature,  and  planned  the  common  school 
system  of  the  state.  Anothei*  son,  Jervis  Cutler,  said  to  be 
the  first  emigrant  who  landed  at  Marietta,  wrote  a ‘ Topograph- 
ical Description  of  the  States  of  Ohio,  Indiana  Territory  and 
Louisiana,  comprising  the  Ohio  and  Mississip})i  Eivers,’  219 
pp,.  12  mo.,  which  was  published  in  1812,  and  illustrated  with 
engravings  by  liis  own  hand.  Judge  Cutler’s  son,  Hon.  Wil- 
liam P.  CMtler,  still  living  at  Marietta,  and  one  of  the  most 
prominent  men  of  Southeastern  Ohio,  was  a member  of  Con- 
gress from  Ohio  from  1860  to  1862.” 

The  “ To])ogTaphical  Descri])tion,”  etc.,  by  bis  son,  Jervis  Cutler, 
is  more  fully  entitled  as  follows  : 


TITLE  PAGE. 

“A  Topographical  Description  of  the  State  of  Ohio,  Indiana 
Territory  and  Louisiana.  Comprehending  the  Ohio  and  M issis- 
sippi  Pi  vers  and  Their  Principal  Tributary  Streams : the 
face  of  the  country,  soils,  waters,  natural  ])roductions,  aiiimal, 
vegetable  and  mineral;  towns,  villages,  settlements  and  ini- 
provements:  and  a Concise  Account  of  the  Indian  Tribes  M^est 


14 


of  the  Alississippi.  To  which  is  added  an  interesting  journal 
of  Mr.  Clias.  Le  Jlaye,  wliile  a captive  with  the  Sioux  Nation, 
on  tlie  waters  of  the  Missouri  liiver.  ]3y  a later  officer  (Jervis 
Cutler)  in  the  U.  S.  Army,  Boston — Published  hy  Charles  Wil- 
liams, J.  Belcher,  Printer,  1812.’’ 

This  work  contains  the  following  references  to  the  Chicago 
portage : 

^‘Chap.  A Topographical  Description  of  the  Indiana 
territory,  pp.  53-66. 

‘T)ne  of  the  principal  branches  of  the  Illinois  takes  its  rise  ' 
near  the  head  waters  of  the  Chicago  River,  which  enters  into 
Lake  Michigan.  Between  these  two  rivers  there  is  a 'short 
portage  of  only  two  miles,  making  an  easy  communication  be- 
tween the  Mississippi  and  the  lakes.”  (p.  62.) 

HISTORY  OF  THE  ORDINANCE  OF  1787. 

By  Governor  Edward  Coles  (second  Governor  of  Illinois). 

2.  In  the  history  of  the  Ordinance  by  Governor  Coles  (pub- 
lished by  P.  Hist.  Soc.,  1856)  he  reviews  the  earlier  ordinance  of 
1784,  drafted  by  Thomas  Jefferson,  which  included  both  the  com- 
pact and  the  anti-slavery  clause,  and  says : 

‘Ht  ceded  all  her  right  and  title  to  the  soil  and  jurisdiction 
to  the  United  States,  and  made  many  stipulations  ; among 
others,  ^That  the  French  and  Canadian  inhabitants  and  other 
settlers  of  the  Kaskaskias,  St.  Vincents,  and  the  neighboring 
villages,  who  have  professed  themiselves  citizens  of  Virginia, 
shall  have  their  possessions  and  titles  confirmed  to  them,  and 
be  protected  in  the  enjoyment  of  their  rights  and  liberties. 

* * * In  consequence  of  the  objectionable  stipulations 

made  by  Virginia,  as  to  the  divisions  of  the  territory  into 
states,  the  deed  of  cession  was  refererd  back  to  that  state, 
with  a recommendation  from  Congress  that  these  stipulations 
should  be  altered.  On  December  30,  1788,  Virginia  assented 
to  the  wish  of  Congress,  and  formally  ratified  and  confirmed 
the  fifth  article  of  compact,  which  related  to  this  subject,  and 

tacitly  gave  her  assent  to  the  whole  Ordinance  of  1787. 

* ‘ * * * # * * 

comparison  of  the  plan  of  government,  as  drawn  by  Mr. 
Jefferson,  and  that  finally  adopted  by  Congress,  ])oth  of  which 
I have  endeavored  briefly  to  sketch,  will  show:  1st.  That 
with  Mr.  Jefferson  originated  the  idea  of  a compact  between 
the  original  states  and  the  new  states  to  be  formed  out  of  the 
territories,  unalterable  but  by  their  joint  consent.  * * * 

4th.  To  the  provision  which  Mr.  Jefferson  originated  and  in- 


soi-ied  in  liis  plan,  making’  it  a niattor  of*  coinpacd  that  the  new 
states  should  forever  remain  part  of  the  United  States;  he 
subject  to  the  government  of  Congress,  and  the  articles  of 
confederation;  bear  their  share  of  the  federal  debts;  adliere 
to  a republican  form  of  government,  and  admit  no  one  to 
citizenship  who  should  hold  an  hereditary  title — to  these  the 
Ordinance  as  adopted  by  Congress  added  provisions  to  pro- 
tect the  public  lands  from  interference  and  taxation;  to  pre- 
serve as  highways  some  of  the  great  rivers ; and  to  enlarge  the 
enumeration  of  the  personal  rights  of  the  citizen.  5th.  That 
the  most  important  clause  in  Mr.  Jefferson’s  plan — that  which 
provided  that  ^ after  the  year  1800  of  the  Christian  era  there 
should  be  neither  slavery  nor  involuntary  servitude  in  any  of 
the  said  states,  otherwise  than  in  punishment  of  crimes, 
whereof  the  party  shall  have  been  duly  convicted  to  have  been 
personally  guilty’ — ^was  adopted  by  Congress  with  no  change, 
except  the  omission  of  the  postponement  of  its  operation  until 
1800,  and  the  introduction  of  the  clause  for  the  restoration  of 
fugitive  slaves. 

#*#*#** 

^‘To  form  a correct  idea  of  what  passed  in  relation  to  the 
Ordinance,  it  is  necessary  to  recall  to  mind  the  etforts  made 
by  France  to  encompass  and  restrict  the  western  frontiers  of 
the  English  colonies,  by  establishing  a cordon  of  forts  with 
surrounding  settlements  connecting  its  colonies  of  Louisiana 
and  Canada ; and  that  France  claimed  and  occupied  much  of  the 
territory  to  the  eastward  of  the  Mississippi  River  prior  to  1763, 
when  it  was  ceded  to  England;  after  which  it  formed  parts  of 
the  English  slave-holding  colonies.  When  these  facts  are  con- 
sidered, it  will  not  excite  surprise  that  the  inhabitants  of  the 
settlements,  thus  formed  and  governed,  should  have  been 
favorable  to  the  existence  of  slavery,  as  it  was  established  by 
the  French  laws  of  Louisiana,  and  by  the  laws  of  the  English 
colonies  to  which  the  country  east  of  the  Mississippi  River  be- 
came attached  by  the  cession  of  France  in  1763.” 

Governor  Coles  does  not  favor  the  claim  made  that  Nathan  Dane 
of  Massachusetts  was  tlie  author  of  the  Ordinance,  although  ^ Jie 
may  have  l)een  active  and  instrumental  in  working  into  the  Ordi- 
nance his  favorite  provisions  about  title  to  property.”  (p.  15.) 

Governor  Coles  then  rehearses  the  history  of  the  calling  of  the 
new  constitutional  convention  to  make  Illinois  a slave  state  and  of 
the  defeat  of  that  plan  ‘^by  a majority  of  about  1600  votes  of  the 
people  at  the  general  election  in  August,  1824;  and  thus  terminated 
the  last  struggle,  the  last  effort  of  the  slave  party,  to  defeat  the 
wise  and  philanthropic  purposes  of  the  Ordinance  of  1787.” 


“It  would  not  he  doing  justice  to  the  Ordinace  * * * 

were  .1  to  omit  to  add  some  of  the  repeated  and  unprecedented 
sanctions  it  lias  received  from  Congress  and  the  American 
jieople.  * * * 

“This  brings  to  my  recollection  what  I was  told  by  Mr. 
Madison,  and  which  1 do  not  remember  ever  to  have  seen  in 
})rint.  The  old  Congress  held  its  sessions,  in  1787,  in  New 
York,  while  at  the  same  time  the  convention  which  framed  the 
Constitution  of  the  United  States  held  its  sessions  in  Phila- 
delphia. Many  individuals  were  members  of  both  ibodies, 
and  thus  were  enabled  to  know  what  was  passing  in  each — 
both  sitting  with  closed  doors  and  in  secret  sessions.  The  dis- 
tracting question  of  slavery  was  agitating  and  retarding  the 
labors  of  both,  and  led  to  conferences  and  inter-communica- 
tions of  the  members,  which  resulted  in  a compromise  by  which 
the  northern  or  anti-slavery  portion  of  the  country  agreed  to 
incorporate,  into  the  Ordinance  and  Constitution,  the  provision 
to  restore  fugitive  slaves;  and  this  mutual  and  concurrent 
action  was  the  cause  of  the  similarity  of  the  provision  con- 
tained in  both,  and  had  its  influence  in  creating  the  great 
unanimity  by  which  the  Ordinance  passed,  and  also  in  making 
the  constitution  the  more  acceptable  to  the  slave  holders. 

“Among  the  first  laws  passed  by  the  first  Congress  and  ap- 
proved by  President  AYashington,  August  7th,  1789,  was  one 
to  ada])t  the  Ordinance  to  the  new  constitution  of  the  United 
States.  It  thus  received  the  sanction  of  Congress  under  the 
present  constitution,  as  it  had  previously  done  of  the  old  Con- 
gress under  the  Articles  of  Confederation. 

“The  seventh  Congress  passed  an  act,  which  was  approved 
by  President  Jefferson,  April  30,  1802,  authorizing  Ohio  to 
form  a state  constitution  and  for  her  admission  into  the  Union, 
‘Provided  the  same  shall  be  republican,  and  not  repugnant  to 
the  Ordinance  of  the  13th  of  July,  1787,  between  the  original 
states  and  the  people  and  states  of  the  territory  northwest  of 
the  River  Ohio.’  ” 

*##*#** 

‘ ‘ On  the  19th  of  April,  1816,  the  14th  Congress  passed  an  act 
authorizing  Indiana  to  form  a state  constitution,  and  for  her 
admission  into  the  Union ; and  on  the  18th  of  April,  1818,  the 
15th  Congress  passed  a similar  law  for  the  admission  of  Illi- 
nois. Both  of  these  acts  were  approved  by  President  Madi- 
son, and  both  contained  similar  provisos — that  their  constitu- 
tion when  formed  should  be  ‘republican,  and  not  repugnant 
to  the  ordinance  of  July  13,  1787.’ 

“The  16th  Congress  passed  an  act,  commonly  known  as  the 
Alis’souri  Compromise,  authorizing  the  people  of  Alissouri  to 
form  a constitution  and  state  government  ‘and  to  prohibit 
slavery  in  certain  territories,’  approved  by  President  Alon- 
roe,  March  6,  1820,  in  which  it  is  provided  ‘That  in  all  that 


17 


territory  ceded  by  France  to  the  United  States,  nnd(‘r  tlie 
name  of  Louisiana,  which  lies  north  of  36  degrees  30  minutes, 
north  latitude,  not  included  within  the  limits  of  tiie  state  con- 
templated by  this  act,  slavery  and  involuntary  servitude,  other- 
wise than  in  punishment  of  crimes,  whereof  the  parties  shall 
have  been  duly  convicted,  shall  be,  and  is  hereby  forever  pro- 
hibited; Provided  always,  that  any  person  escaping  into  the 
same  from  whom  labor  or  service  is  lawfully  claimed  in  any 
state  or  territory  of  the  United  States,  such  fugitive  may  be 
lawfully  reclaimed,  and  conveyed  to  the  person  claiming  his 
or  her  labor  or  service  as  aforesaid.’  This  act,  by  using  lan- 
guage so  similar  to  that  contained  in  the  Ordinance,  recognizes 
and  sanctions  its  provisions  in  relation  to  slavery,  and  extends 
them  to  all  the  territory  owned  by  the  United  States  west  of 
the  Kiver  Mississippi  and  north  of  36  degrees  30  minutes,  ex- 
cept the  State  of  Missouri. 

“By  the  joint  resolution  annexing  Texas  to  the  United 
States,  passed  by  the  28th  Congress,  and  approved  by  Presi- 
dent Tyler  March  1st,  1845,  it  is  stipulated  that  such  states  as 
may  be  formed  out  of  that  portion  of  said  territory  lying  south 
of  36  degrees  30  minutes,  north  latitude,  commonly  known  as 
the  Missouri  Compromise  line,  shall  be  admitted  into  the 
Union  with  or  without  slavery,  as  the  people  of  each  state, 
asking  admission,  may  desire.  And  in  such  state  or  states 
as  shall  be  formed  out  of  said  territory,  north  of  said  Missouri 
Compromise  line,  slavery  or  involuntary  servitude  (except  for 
crimes)  shall  be  prohibited.’ 

“The  act  passed  by  the  30th  Congress,  and  ajoproved  by 
President  Polk,  August  14,  1848,  to  establish  a territorial  gov- 
ernment for  Oregon,  provides  ^That  the  inhabitants  of  said 
territory  shall  be  entitled  to  enjoy  all  and  singular  the  rights, 
privileges  and  advantages  granted  and  secured  to  the  people 
of  the  territory  of  the  IJnited  States,  northwest  of  the  Elver 
Ohio,  by  the  articles  of  compact,  contained  in  the  ordinance 
for  the  government  of  said  territory,  on  the  13th  day  of  July, 
1787,  and  shall  be  subject  to  all  conditions  and  restrictions  and 
prohibitions  in  said  articles  of  compact  imposed  upon  the  peo- 
ple of  said  territory.’  It  cannot  escape  notice,  that  this,  the 
last  of  the  many  acts  of  Congress  approbatory  and  confirma- 
tory of  the  Ordinance,  should  be  most  complimentary  of  it. 
The  language  used  represents  the  Ordinance  as  a boon  by 
which  the  people  of  Oregon  became  entitled  to  enjoy  all  the 
rights,  privileges  and  advantages  which  that  measure  granted 
and  secured  to  the  people  of  the  Northwestern  Territory. 

“This  statement  shows  that  between  1787  and  1854,  when 
the  Missouri  Compromise  was  repealed,  a period  of  sixty- 
seven  years,  eight  different  Congresses  passed,  and  six  differ- 
ent individuals  acting  as  Presidents  of  the  United  States,  viz. : 


Wasliiiigton,  Jefferson,  Madison,  Monroe,  Tyler  and  Polk,  ap- 
proved eight  laws  of  the  United  States,  enacting  and  re-enact- 
ing, sanctioning  and  confirming  and  extending,  as  well  in 

lengtli  of  time,  as  extent  of  space,  the  ordinance  of  1787. 
* # * 

‘‘]n  conclusion  I will  say,  the  wisdom,  expediency,  and  salu- 
tary practical  effects  of  the  Ordinance,  could  not  he  more 
clearly  shown  than  by  contrasting  its  operations  with  those  of 
its  substitute.  Under  the  ordinance  from  1787  to  1854,  the 
territories  subject  to  it  were  quiet,  happy  and  prosperous. 
Since  its  principles  were  repudiated,  in  1854,  we  have  had 
nothing  but  contention,  riots  and  threats,  if  not  the  awful 
realities  of  civil  war,  which  painful  state  of  things  has  been 
brought  about  by  the  substitution  of  the  legislation  of  1854 
for  that  of  1787,  long  consecrated  as  it  had  been  by  time,  and 
by  the  approbation  of  the  greatest  and  best  men  of  our  coun- 
try.’' / 


APPENDIX!  I r. 


DOCUMENTS 

TOUCHING  THE 

Lakes  to  Gulf  Waterway 


(1)  REPORT  of  Major  STEPHEN  H.  LONG,  1819. 

(2)  REPORT  of  GRAHAM  and  PHILLIPS,  1819. 

(3)  MAP  from  Major  LONG’S  “EXPEDITION.” 

(4)  RELATION  of  FATHER  DABLON,  1674. 


NOTE 


Tlie  accompanying  pamphlet  is  a reprint  of  materials 
mentioned  on  the  foregoing  title  page. 

Two  of  these  documents  are  embraced  in  Executive 
Document  No.  17,  16th  Congress,  1st  Session,  printed 
for  the  United  States  Government  in  1819,  viz.: 

(1)  The  extracts  from  the  report  of  Major  S.  H. 
Long  (of  the  IT.  S.  Topographical  Engineers),  dated 
March  4,  1817,  and 

(2)  The  supplemental  report  of  Messrs.  Graham  and 
Phillips,  on  the  subject  of  ‘^communications  between 
the  River  Illinois  and  the  Michigan  Lake,”  dated  April 
4,  1819,  both  of  which  were  transmitted  to  Congress  by 
Secretary  Calhoun. 

The  document  from  which  the  map  mentioned  as  (3) 
upon  the  foregoing  title  page,  is  taken  (together  with 
some  further  extracts),  is  the  general  work  descriptive  of 
Major  Long^s  expedition  of  1819-20,  compiled  by  his  as- 
sistant, Mr.  Edwin  James,  and  published  in  London  in 
1823. 

The  extracts  reprinted  from  this  book  are  (a)  the  title 
page 5 {b),  the  dedication  to  Secretary  Calhoun;  and  (c), 
the  map.  This  map  sets  forth  the  route  of  Major  Long 
and  his  party  on  both  expeditions,  and  embraces  the  ma- 
terial which  he  referred  to  in  the  report  of  1817,  as  fol- 
lows : ‘^  The  courses  and  relative  positions  of  the  several 
rivers  and  creeks  may  be  seen  by  recurring  to  the  plans.” 

The  book  known  as  “United  States  Government  pub- 
lication, 16th  Congress,  1st  Session,  House  Documents 


12  to  33,  Serial  Number  32,  ’ ^ was  kindly  loaned  by  tbe 
library  of  tlie  University  of  Cbicago,  from  whicb  Docu- 
ment No.  17  was  photographed. 

The  copy  of  the  ‘Uiceoirat^^  from  which  the  map,  title 
and  dedicatory  page  were  photog::iaplied  was  forwarded 
from  the  Library  of  the  Engineer  Dspartment,  U.  S. 
Army,  'Washington,  D.  C.,  to  Lieut  Col.  Eixby  of  the 
United  States  Engineers,  Chicago;  and  the  photographs 
were  taken  from  it  while  in  his  possession.  Our  thanks 
are  due  to  Lieut.  Col.  Bixbj  and  to  the  ofhoers  of  these 
libraries  for  their  courtesies. 

Documents  (1)  and  (2)  and  the  extracts  from  docii- 
mcnt  (3)  have  been  reprinted  photographically.  They  are 
facsimiles  of  the  originals.  The  dO'Cnments  from  which 
extracts  from  the  relation  of  Father  DoMcn  arc  re- 
printed are  found  in  Chicago  Public  Lil>rar3a 

These  pamphlets  are  reprinted  for  use  in  tho  case  of 
the  People  of  the  State  of  Illinois  ofi  Rdaiim  of 
Charles  S.  Deneen,  Governor,  and  WtUiam  il.  Stead,  At- 
torney General,  v.  The  Economrj  Light  and  Poiver  Com- 
pany (Grundy  County  Circuit  Court,  Chancery,  No. 
1,526) 

"Wm.  H.  Stead, 

'Walter  Eseyes, 

Mefxutt  Stabe, 

Counsel  for  the  State, 


Oiiicago,  February  27,  1908, 


[17] 


FROM 


THE  SECRETARY  OF  WAR, 


TRANSMITTING 


TOPOGRAPHICAL  REPORTS, 


MADE  WITH  A VIEW  TO  ASCERTAIN  THE  PRACTICABILITY  OF 
UNITING  THE  WATERS  OP  ILLINOIS  RIVER,  WITH 
THOSE  OF  LAKE  MICHIGAN. 


DECEMBER  28,  1819. 

Read,  and  ordered  to  lie  upon  the  tabic. 


WASHINGTON  : 


JPIllNTRD  BT  GILES  Cif  BEATON. 

1819. 


DEPARTMENT  OF  WAR, 

28th  Decembee,  1819. 

Sir:  Ri  comj)liance  witli  a resolution  of  the  House  of  Representa- 
tives, of  the  1 5th  iiist.  directiu!^  the  Secretary  of  War  “ to  lay  be- 
fore that  Hofisc  the  several  Topographical  reports  tliat  liave  been 
made  to  the  War  Department,  in  pursuance  of  instructions  to  that 
elfBCt,  respectiiii^  the  practicability  of  uniting,  by  a canal,  the  waters 
of  the  Illinois  idvcr,  and  those  of  Lake  Michigan,  and  such  other  in- 
formation as  he  may  be  in  possession  of,  on  that  subject/’  I have 
thohoiior  to  transmit  an  extract  of  Major  Long’s  report,  and  a copy 
of  a report  made  by  R.  Graham  and  Josepli  rht?ips,  Esejuires,  which 
comprehend  ail  the  information  on  the  subject  in  this  Dej)artmcnt. 

I have  the  honor  to  be, 

Very  respectfully,  Sir, 

Your  most  obedient  servant, 

I.  C.  CALHOUN. 


Hon.  Hejstrv  Clav, 

Speaks  oj  fhe  Jiovse  of  Uepresmi(i.lrots  U, 


5 


t in 


EXTRACT  from  a Report  of  Major  Stei)hen  Hn  Long  to  George  Gra- 

hann.  Esq.  Mting  Sea'ctary  of  fVai'f  dated  Washington,  March  4th 

1817. 

The  Illinois  is  formed  by  the  union  of  three  considerable  Rivers,  the 
Des  Planes,  the  l)e  Page,  and  the  Kankalree^  the  last  of  which  is  nearly 
double  the  size  of  either  of  tlie  two  former.  The  Illinois  is  about  300 
miles  in  length,  and  is  of  variable  width,  from  seventy  yards  to 
one  mile.  It  has  a very  moderate  current,  and  a depth  of  water  suf- 
ficient to  render  it  navigable,  at  all  times,  for  boats  of  considerable 
burden,  about  230  miles  from  its  mouth.  At  the  mouth  of  the  Ver- 
million, there  are  rapids,  perceivable  only  in  the  Iowti*  stages  of  w in- 
ter. Farther  up,  the  water  is  not,  generally,  so  deep  as  it  is  helow^ 
the  Vermillion. 

The  Valley  of  the  Illinois  varies  in  its  width,  fj*om  three  to  ten 
miles;  is,  generally,  flat  and  marshy,  and,  for  the  most  part,  sub  ject  to 
inundation,  when  the  river  has  no  more  than  a medial  height.  In 
some  parts  of  it,  however,  prairies  and  bottoms,  of  coirsiderablc  ex- 
tent, are  to  be  met  with,  elevated  much  above  high  w ater  mark.  In 
ascending  the  river,  the  bluffs  gradually  decrease  in  height,  being 
about  150  feet  high  at  the  mouth,  and  about  100  feet  at  the  hcaVi  of 
the  river.  Imbedded  in  the  bluffs,  are  strata  of  limestone,  slate  and 
coal,  which,  occasionally,  make  their  appearance  along  tlie  surface 
of  the  declivities. 

The  river  Des  Planes  is  a small  stream  rising  in  the  low  lands, 
bordering  upon  the  w est  side  of  Lake  Michigan,  and  has  its  general 
course  in  a southwesterly  direction.  The  valley  of  tliis  river  has  an 
average  w idth  of  about  one  mile,  and  is  terminated  on  both  sides  by 
regular  banks,  nearly  parallel  to  each  other,  extending  along  the  riv- 
er about  30  miles  from  tbc  bead  cf  the  Illinois.  In  ascending  this 
river,  also,  the  banks  or  bluffs  gradually  decrease  in  Iieiglit,  being, 
as  before  mentioned,  about  IQO  feet  high  at  the  moiitb,  and  only  20 
or  25  at  the  distance  of  30  miles  higher  up  the  river,  where,  instead 
of  maintaining  their  parallel  direction,  they  form  nearly  right  angles 
with  the  course  cf  the  river,  that  on  the  right  taking  an  easterly,  and 
that  on  the  left  a north- w^esteriy  course;  but,  being  gradually  inilect- 
ed  from  these  courses,  they  form  an  extensiv^e  curve,  encii'cling  a large 
tract  of  flat  prairie,  in  no  part  elevated  mdre  than 2 or  14  feet 
above  the  common  level  of  the  v/ater  in  this  vicinity.  The  rivey, 
tlirougbout  the  above  mentioned  distance,  has  4 or  5 short  rapi{S.s  or  rip- 
ples that  make  tlicir  appearance  only  in  IcyW  v/ater.  In  evez-y 

other  paH,  it  has  the  appearance  of  being  a chain  of  stagnant  poolfi 
and  small  lakes,  affording.asuffcicnt  dejythof  wo-ter  ibr  boats  of  mo  - 
derate draught. 


In  the  flat  prairie,  above  mentioned,  is  a small  lake,  about  5 miles 
in  Icngtl),  and  from  6 to  SO  or  40  yards  in  'width,  comnjunicating  both 
with  the  river  Desplancs,  and  Chicago  river,  fey  means  of  a kind  of 
canal,  which  lias  been  made  partly  by  the  current  of  the  water,  and 
partly  by  the  French  and  Indians,  ibr  the  pui^se  of  getting  tiieir 
boats  across  in  that  direction,  in  time  of  high  water.  The  distance 
from  the  river  Desplanes  to  Chicago  river,  by  this  w'ater  course,  is 
about  9 miles;  through  the  greater  part-  of  w hich,  there  is  Jiiorc  o? 
less  water,  so  that  the  portage  is  seklom  more  than  S miles  m the 
driest  season;  but  in  a wet  season,  boats  pass  and  repasr^  with  frxility 
betv/ecii  the  two  rivers. 

The  rivers  De  Page  and  Kankakee  hear  nearly  the  same  charac- 
ter, in  regard  to  their  bluffs,  valleys,  &e.  that  has  been  given  to  the 
Desplanes.  The  former  of  these  rivers  takes  its  rise  a few  miles  v/eat 
of  that  Of  the  Desplanes,  and  has  a course  nearly  pai’allel  with  it. 
The  latter  rises  in  a flat  marshy  country  in  the  ndghboj'hood  of  the 
St«  Joseph  of  the  Lake,  and  runs  a meandering  course 
passing  the  southem  extremity  of  Lake  Michigan,  at  the  distance  of 
20  or  30  miles  from  il.  Near  the  head  of  this  river  is  a small  creek 
falling  into  St*  Joseph,  through  which  boats  have  passed  in  time  of 
high  water,  from  the  SC  Joseph  to  the  Kankakee.  The  con ntry 
through  which  the  Desplanes,  the  De  Page,  and  the  Kankakee  rivei’s 
take  their  course,  appears  to  be  underlaia  with  a vastbedoflirnestone, 
which  occasionally  makes  its  appearance  in  the  valleys  of  those  riv- 
ers, covered  with  a soil  too  thin  to  support  vegetation. 

Chicago  river  fe  merely  an  arm  of  the  lake,  dividing  itself  into 
two  branches,  at  the  distance  of  nne  mile  inland  from  its  commaiii- 
cation  v/ith  the  lake,  llie  north  branch  extends  along  the  w®5tern 
side  of  the  lake  about  thirty  miles,  and  receives  some  few  tributaries. 
The  south  branch  has  an  extent  of  only  3 or  6 miles,  and  receives  no 
supplies,  except  from  the  small  lake  of  the  prairie  above,  describedo 
The  river  and  each  of  its  branches-  are  of  variable  widths,  from  15 
to  50  yards,  and,  for  2:  or  3 miles  inland,  have  a suSicient  depth  of 
waterto  admit  vessels  of  ^most  any  burden.  The  entrance  into  lako 
Michigan,  hov/ever,  which  is  30  yards  wide,  is  obstructed  by  a casd 
bar,  about  70  yards  broad,  upon  the  highest  part  of  'which,  the  water 
k usually  no  more  than  two  feet  deep.  The  difSculty  of  removing 
■this  obstruction  -would  not  be  great.  Piers  might  be  sunk  on  both 
sides  of  the  entrance,  and  the  sand  removed  from  between  theiBi,  By 
this  means,  the  river  would  be  rendered  a sate  and  commodious  har- 
bor for  shipping,  a convenience  which  is  seldom  to  be  met  with  oa 
the  shores  of  lake  Michigan. 

The  St,  Joseph  of  the  lake  is  navigable  for  batteaux  to  a very 
considerable  distance,  in  all  stages  c?f  the  water. 

The  St.  Joseph  and  St.  Mary’s  of  the  Maumee,  are  rivers  of  con- 
siderable size  and  extent, 'The  latter,  in  -wet  seasons,  is  navigable  for 
perogues  to  fort  St«  Mary’s,  one  hundred  and  iifty  inilas  from  its 
confluence  -with  the  former,  bythe  co^e  of  ths  river.  Its  branches 


Ci7] 


7 


interlock  \rith  those  of  the  Wabash  and  Big  Miami.  The  St.  Joseph 
is  navigable  about  50  miles,  its  tributaries  interlocking  with  those 
of  the  St.  Joseph  of  the  lake,  the  Rankakee,  and  the  Wabash.  The 
Maumee  of  the  lake  is  100  miles  in  length,  and  is  navigable  for  bat- 
tcaiix  and  perogues  throughout  its  whole  extent,  in  all  stages  of  the 
water:  about  tliirty  miles  above  its  mouth  are  the  Wolf  Rapids.  The 
face  of  the  water,  however,  is  not  so  gi*eat  as  to  occasion  any  very 
serious  obsti'uctioii  to  the  navigation  of  the  river. 

The  courses  and  relative  positions  of  the  several  rivers  and  creeks 
may  be  seen  by  recurring  to  the  plans. 

Proposed  Canals  and  Poods* 

A Canal  uniting  the  waters  of  the  Illinois,  with  those  of  Lake  Mi- 
chigan, may  be  considered  the  first  in  importance  of  any  in  this 
quarter  of  tlic  country,  and,  at  the  same  time,  tiic  construction  of  it 
would  be  attended  with  very  little  expense,  compaixd  with  the  magni- 
tude of  the  object.  The  water  course,  which  is  already  opened  be- 
tween the  river  Desplanes  and  Chicago  nver,  needs  but  little  more 
excavation  to  render  it  sufficiently  capacious  for  all  the  purposes  of  a 
canaL  It  may  be  supplied  with  water  at  all  times  of  the  year,  by 
constructing  a dam  of  moderate  height  across  the  Des  Planes,  which 
v/ould  give  the  water  of  "that  river  a sufficient  elevation  to  supply  a 
canal  extending  from  one  river  to  the  other.  It  would  be  necessary 
also,  to  construct  locks  at  the  extremities  of  the  canal,  that  commu- 
nicating with  Chicago  river  being  calculated  to  elevate  about  six 
feet,  and  that  communicating  with  the  Des  Planes,  aliout  four  feet. 

To  render  the  Des  Planes  and  Illinois  navigable  for  small  boats 
and  flats  requiring  but  a small  draught  of  water,  nothing  more  is 
necessary  tl»an  the  construction  of  sluices,  in  a few  places  where 
there  are  ripples  of  a .sufficient  width  to  admit  the  boats  to  pass 
through  them.  This  may  be  effected  by  clearing  away  the  loose 
stones  from  the  bottom,  and  forming  banks  riveted  with  stone  two 
or  three  feet  high,  on  each  side  of  the  sluice.  Thus,  a w^ater  com- 
munication between  the  Dlinois  and  lake  Michigan  may  be  kept  open 
at  all  times  sufficient  to  answer  all  the  purposes  for  which  a canal 
will  be  wanted,  formally  years  to  come.  A canal  uniting  the  St.  Joseph 
of  the  lake  with  the  Illinois,  by  w^ay  of  the  Kankakee,  may  be  con- 
stricted also  ina  similar  manner,  and  w ith  great  facility,  except  that 
the  distance  by  this  route  is  considerably  greater. 

I’here  are  vai  ious  other  places  where  water  communications  may 
he  opened  in  this  quarter,  jby  means  of  canals,  to  great  advantage,  of 
wffiich  the  following  are  but  a small  proportion,  viz.  Between  the  St. 
Joseph  of  the  lake,  and  the  St.  Joseph  of  the  Maumee;  between  the 
latter  and  the  Wabash;  and  between  the  Illinois  and  the  Wabash,  by 
way  of  the  Saugano  river.  ^ canal  also  uniting  the  Mississippi  and 
Oliio,  a little  above  their  junction,  would  be  of  great  public  utility, 
particularly  should  a general  depot  for  military  stores  be  established 


s 


[ 17  J 

near  the  moutli  ot‘  the  latter.  The  objects  of  this  canal  would  fae  to 
shoi-tcn  the  distance  by  water  from  the  contemplated  site  of  the  de- 
pot, nortliwardly,  to  avoid  a part  of  the  Mississippi,  difficult  to 
navigate,  and  to  render  the  depot  accessible  by  an  easy  and  safe 
communication,  both  from  the  Ohio  and  Mississippi.’’ 


Kaskasxia,  April  ‘ith,  1819, 

Sir  : In  addition  to  the  notes  of  Mr.  Sullivan,  the  surveyor,  which 
describe  the  face  of  the  country  over  which  the  lines  were  run,  we 
beg  leave  to  suggest  sonic  views  which  occurred  to  us  on  the  subject 
of  communications  between  the  river  Illinois  and  the  Michigan  Lake. 

15y  reference  to  the  map  herewith  forwarded,  it  v/ill  be  seen,  that 
the  little  river  Flein,  coming  from  the  north-west,  approaches  within 
ten  miles  and  a quarter  of  Lake  Michigan,  and  then,  bending  to  the 
south-west,  unites  with  the  TheakUd,  at  the  distance  of  about  fifty 
miles,  and  forms  the  rivei*  llUnois. 

The  country  between  the  Lake  and  the  Plein,  at  this  point  of  ap- 
proach, is  a prairie  (natural  meadow)  without  trees,  covered  witii 
^Tass,  and,  to  the  eye,  a perfect  level.  From  the  bank  of  the  Pldn^ 
Gtanding  on  the  ground,  the  trees  are  distinctly  seen,  with  the  naked 
eye,  at  Fort  Dearborn,  on  the  shore  of  the  lake;  from  Fort  Dear- 
borh  they  are,  in  li]^e  manner,  seen  on  the  bank  of  the  Pldn.  Stand- 
ing GO  any  intermediate  point,  between  the  lake  and  the  river,  and 
the  judgment  is  at  a Ipss  to  say  to  which  side  the  ground  declines, 
and  whether  the  level  of  the  Flan  or  the  lake  is  the  highest.  It  was, 
however,  determined,  from  certain  data,  that  tlie  level  of  the  river  was 
feet,  or  thereabouts^  above  the  level  of  thelake.  From  this  view 
it  would  seem  that  the  cutting  of  a canal,  in  this  place,  between  the 
Pldn  and  the  lake,  would  he  a work  of  neither  skill,  difficulty,  or 
expense.  Small,  however,  as  the  labor  would  be,  under  this  view, 
it  is  still  diniinished  upon  a close  examination,  and  by  finding  that 
an  arm  of  the  lake  called  67iicago  puts  out  in  the  direction  of  tlie 
Fldn^  and  that  an  arm  of  the  Pleim,  also  called  Chicago,  puts  out  in 
the  dii^ction  of  the  lake.  They  approach  within  two  miles  of  each 
other;  so  that,  m convmon  water,  there  is  only  dry  ground  to  that  ex- 
tent between  them.  The  character  of  these  two  arms  is  essentially 
dilTerciit;  that  of  the  lake  beir5g  but  about  sixty  feet  wide,  and 
tsn  to  forty  feet  deep;  that  of  the  river  being,  in  high  water,  from 
four  to  six  feet  deep,  and,  in  places,  a mile  v/ide,  and,  in  low  water, 
eithhr  dry  or  reduced  to  a gutter.  Between  the  heads  of  these  two 
arms  is  also  a gutter,  which  is  dry  in  the  dry  seasons  of  summer  and 
fall,  and  full  of  water  in  the  spring,  and,  wffien  thus  filled  with  water, 
the  boats,  of  six  or  eight  tons,  engaged  in  the  Mackinaw  and  Mis- 
sissippi trade,  run  through,  backwards  and  forwards,  so  as  to 


C 17  ] 


y 


make  no  portage  between  Mackinaw  and  tiie  Mississippi.  This  gut- 
ter, judging  from  the  appearance  of  others  noV/  forming,  was,  at 
first,  a path  worn  out  by  the  feet  of  tiicse  who  carried  things  across 
the  portage,  and  afterwards  deepened  by  the  attrition  of  the  waters, 
until  formed  into  a little  canal.  The  wind,  alone,  gives  the  v/ater  a 
current  in  this  little  canal,  and  its  direction  depends  upon  the  course 
of  the  wind.  Objects  have  been  seen  to  float  out  of  it,  from  the 
same  point,  to  the  river  and  to  the  lake. 

it  is  incontestibly  true,  that  an  east  w ind  will  drive  the  water  of 
the  lake  through  this  gutter  into  thei'^ein,  and  that  water  from  Lake 
Michigan  has  been  discharged,  by  this  outlet,  into  the  Mississippi, 
and  thence  into  the  Gulf  of  Mexico.  It  is  equally  incontestible,  that 
the  waters  of  the  Flein  have  ^en  driven,  by  the  same  channel,  into 
the  lake;  and  these  phenomena  may  now  be  witnessed,  at  any  time, 
when  the  waters  are  high  and  the  wind  blows  hard,  it  follows, 
therefore,  that,  to  finish  the  canal  began  by  nature,  iii  this  place, 
would  require,  as  we  have  already  said,  but  little  of  skill,  time,  or 
expense.  On  opening  the  canal,  however,  two  difficulties  would  he 
experienced. 

ist.  The  Plein  would  be  found  to  be  above  the  level  of  the  canal : 
its  water,  of  course,  would  he  div  erted  from  its  natural  channel,  and 
pass  by  the  canal  into  the  lake. 

2d.  Supposing  that  evil  remedied  by  a lock  to  lift  vessels  into  the 
Pfein,  yet  the  plein,  during  half  the  year,  does  not  contain  water 
enough  to  float  a boat,  and  so  could  not  become  useful  as  a national 
highway. 

To  remedy  this  defect  of  water  in  the  Flem,  two  projects  suggest 
themselves.  1st.  To  sink  the  bed  of  the  Flcm  below  the  level  of  the 
canal,  and  thus  increase  the  depth  of  the  Flem  as  well  by  feeding  it 
out  of  the  lake,  as  by  Collecting  its  water  into  a narrower  channel. 
2d.  To  make  the  canal  unite  with  the  Flein  lower  dowm  in  its  course. 
A few  miles  lower  would  be  sufficient  to  give  the  water  of  the  Lake  ado- 
scent  into  tlie  river,  as  thePiem  has  a sensible  descent  in  this  place,  inso- 
much that  the  people  of  Chicago  call  it  ‘‘  The  Rapids,”  having  no 
other  v/ord  to  distinguish  moving  v/ater  from  that  which  stands  still. 
Of  the  Flein  below  its  poiiit  of  approach  to  tlie  lake,  we  v/ould  i*c- 
mai  k,  tliat  it  has  hardly  the  attributes  of  a river,  being  in  most  places 
without  current,  and  without  banks,  lying  as  a sheet  of  water  in  the 
Prairie,  sometimes  a mile  wide,  and  so  shallow  that  the  tall  grass  ap- 
pears almost  every  where  above  its  surface.  Having  said  thus  much 
of  the  facility  of  communication  by  the  CAviiagOjWc  would  now  remark, 
that  several  other  routes  are  perfectly  practicable,  Ist.  From  a 
point  in  the  lake  south  of  Chicago  to  enter  the  Flein  beiew  mount 
JuUet,  at  or  near  what  is  called  lake  du  Fage^  but  which  is  only  a 
dilation  of  the  waters  of  the  Flein,  This  routs  would  lay  o/er  level 
Prairie,  through  a multitude' of  small  lakes,  or  ponds,  which  have 
neither  name  or  place  in  any  map.  2.  By  a canal  leaving  the  lake  near 
its  south  end,  and  uniting  with  the  Tlijeakikijmt  above  its  confluence 

o 


10 


C ] 


w illi  the  JPleiiu  Both  of  these  canals  would  be  fed  from  the  lake, 
would  require  few  or  no  locks,  would  go  over  ground  of  the  same 
soi*t,  would  be  50  or  60  miles  long,  and  would  join  the  waters  of  the 
Illinois  at  points  from  which  it  is  constantly  navigable.  A third  route 
was  spoken  of,  but  not  seen  by  us.  It  would  lie  betv/een  the  Thea^ 
kiki  and  the  St.  Joseph  of  the  lake.  Information  says,  thatit  has  been 
practised  by  French  traders.  You  will  perceive,  sir,  that  wc  have 
not  spoken  of  the  nature  of  the  soil  through  which  these  several  routes 
would  pass.  Not  being  our  business  to  search  for,  and  report  upon 
the  practicability  of  water  communications,  our  observations  were 
limited  to  what  fell  under  the  eye  while  engaged  in  another  duty, 
and  in  making  this  report  to  you,  it  is  our  object  to  excite  inquiry, 
not  to  furnish  plans  of  practicable  projects.  We  shall,  therefore, 
only  say,  on  this  point,  that  the  country  in  general,  and  the  bed  of 
the  Flein,  exhibited  much  loose  stone  and  pebble,  and  firm  ground. 

To  conclude,  the  route  by  the  Chicago,  as  followed  by  the  French 
since  the  discovery  of  the  Illinois,  presents  at  one  season  of  the 
year  an  uninterrupted  water  communication  for  boats  of  six  or  eight 
tons  burthen,  betw  een  the  Mississippi  and  the  Michigan  lake;  at  an- 
other season,  a portage  of  two  miles;  at  another,  a portage  of  seven 
inilcs,  from  the  bend  of  the  Flein  to  the  arm  of  the  lake;  at  another, 
a portage  of  fifty  miles,  from  the  mouth  of  the  Flein  to  the  lake; 
over  w hicli  there  is  a well  beaten  w agon  road,  and  boats  and  their 
loads  are  hauled  by  oxen  and  vehicles  kept  for  that  purpose  by  the 
French  settlers  at  the  Chicago. 

Respectfully, 

Your  obedient  servants, 

[Signed]  R.  GRAHAM, 

JOSEPH  PHILIPS. 

The  Hon.  J.  C.  Calhoun, 

Secretary  of  War,  Washington^ 


w 


ACCOUNT 

OF  AN 

EXPEDITION 

FROM  PITTSBURGH 

TO 

THE  ROCKY  MOUNTAINS, 


PERFORMED 

In  the  Years  1819,  1820. 

BY  ORDER  OF  THE 

Hon.  X C.  CALHOUN,  Secretary  of  War, 

UNDER  THE  COMMAND  OF 

Maj.  S.  H.  long,  of  the  U.  S.  Top.  Engineers. 


compiled 

from  the  notes  of  major  long,  MR.  t.  say, 

AND  OTHER  GENTLEMEN  OF  THE  PARTY, 

By  EDWIN  JAMES, 

BOTANIST  AND  GEOLOGIST  TO  THE  EXPEDITION. 


IN  THREE  VOLUMES. 

VOL.  L 

LONDON: 

PRINTED  FOR 

LONGMAN,  HURST,  REES,  ORME,  AND  BROWN, 

PATERNOSTER-ROW. 

1823. 


TO 


THE  HONOURABLE 

JOHN  C-  CALHOUN, 

SECRETARY  OF  WAR; 

WHOSE  LIBERAL  VIEWS,  ENLIGHTENED  POLICY,  AND 
JUDICIOUS  MEASURES, 

WHILE  THEY  HAVE  BEEN  PROSECUTED  WITH  THE  UTMOSl 
CIRCUMSPECTION  -AND  ECONOMY, 

HAVE  CONTRIBUTED  IN  AN  EMINENT  DEGREE 
TO  THE 

ADVANCEMENT  OP  THE  NATIONAL  CHARACTER  OF  THE 

UNITED  STATES, 

BOTH  IN  SCIENCE  AND  POLITICS; 

THE  FOLLOWING  PAGES 
ARE  MOST  RESPECTFULLY  DEDICATED  BY 
THE  AUTHORS, 

AS  A FEEBLE  TESTIMONIAL  OF 

THEIR  HIGH  CONSIDERATION  OF  HIS  TALENTS  AND  PATRIOTISM, 
AND  A GRATEFUL  ACKNOWLEDGMENT  OF 


HIS  INDULGENCE  AND  PATRONAGE. 


<’<)i;ntkv 


-J.^*  ilir.wJ.l.-p.-.N  l.ai 


JEXP1.A^’■AT,^  DIN'S 


PROFU,E  ou  VEU  riC.U,  SECTION  OF  THE  COl’NTKY 

On  Ok  PtoulM  of  Latitiui^  38  dnjrees  Sort/i . 


V\  ** 

ii- 

lA  L 

rA  B A BC  ; 

j| 

(4)  RELATION  OF  FATHER  DABLON. 

The  following  passage  is  taken  from  a manuscript  of 
Father  Claude  Dablon,  which,  as  published  in  the  ‘‘Jesuit 
Relations,^’  is  dated  at  Quebec,  August  1,  1674,  the  full 
title  of  which  is  “Relation  de  la  decouverte  de  plusieurs 
pays  situez  au  midi  de  la  Nouvelle-France,  faite  en 
1673 This  mamisoript  is  found  at  pages,  262-270 
“Decouvertes  et  Etablissements  des  Francais  dans 
L’ouest  et  dans  le  Slid  LAmerique  Septeatrionale 
(1614-1754)  Memoires  et  Documents  Originaux  Recueil- 
lis  et  Publics  par  Pierre  Margry,^’  Paris,  D.  Jouaust, 
1875,  the  passage  in  question  being  at  pages  267-8 : 

“La  quatriesme  remarque  regarde  un  advantage  bien 
grand  et  considerable,  et  qu’on  aura  peut-estre  de  la  peine  h 
croire:  c’est  que  nous  pourrions  aisement  ailer  jusques  ^ la 
Floride  en  barque  et  par  une  fort  belle  navigation.  11 
n’y  auroit  qu^une  saignee  k faire,  coupant  demy  lieue  dc 
prairie  seulement  pour  entrer  du  fond  du  lac  des  Illinois 
dans  la  riviere  Saint-Louis.  Voicy  la  route  qu'on  tiendroit. 
La  barque  se  devroit  faire  dans  le  lac  Efrie,  qui  est  proche 
de  rOntario.  Elle  iroit  aisement  du  lac  Eri6  dans  le 
lac  Huron,  d^ou  elle  entreroit  dans  le  lac  Illinois,  au  fond 
duquel  se  feroit  la  tranch^e  on  le  canal  dont  j^ay  piarle 
pour  avoir  passage  dans  la  riviere  de  Saint-Louis,  qu  se 
descharge  dans  Mississipi,  y est  ant  la  barque  navigable 
facilement  jusqu'au  golphe  de  Mexique.’^ 

The  text  here  used  is  the  French  as  given  in  Pierre 
Margry’s  “Decouvertes,’’  although  the  same  document 
and  passage  is  also  found  reprintc^d  in  volume  58  of  the 
Jesuit  Relations,  pp.  91-109.  The  full  title  of  this  valu- 
able collection  is  “The  Jesuit  Relations  and  Allied  Docu- 
ments ; Travels  and  Explorations  of  the  Jesuit  Mission- 
aries in  New  Prance  (1610-1791).  The  original  French, 


Latin,  and  Italian  texts,  witli  English  Translations  and 
Notes;  illustrated  by  portraits,  maps,  and  facsimiles. 
Edited  by  Reuben  Gold  Thwaites,  Secretary  of  the  State 
Historical  Society  of  Wisconsin.”  (The  descriptive  sub- 
titles and  numbers  of  the  separate  volumes,  occurring  at 
this  point,  are  here  omitted.)  ^‘Cleveland : The  Burrows 
Brothers  Company,  Publishers,  MDCCOXCIX,”  (In  73 
volumes.  The  year  above  given  is  the  date  upon  the  title 
page  of  Vol.  58.  The  other  72  volumes  bear  dates  rang- 
ing from  1896  to  1901,  inclusive.)  On  page  104  of  the 
later  boot  we  find  a slight  variation,  where  the  earlier 
print  of  Margry  uses  the  word  navigable”  the  Jesuit 
Relations  adds  after,  the  word  ‘^na,vigable”  the  follow- 
ing in  parenthesis,  (sc.  navigueroit)  ”. 

Below  is  a translation  of  the  above  passage  which  is 
Jiero  reprinted  as  it  appears  in  VoL  58,  page  105,  of  the 
Jesuit  Relations : 

^The  fourth  remark  concerns  a very  great  and  important 
advantage,  which  perhaps  will  hardly  be  believed.  It  is 
that  we  could  go  with  facility  to  Florida  in  a bark,  and  by 
very  easy  navigation.  It  would  only  be  necessary  to  make 
a canal,  by  cutting  through  but  half  a league  of  prairie, 
to  pass  from  the  foot  of  the  Lake  of  the  Illinois  to  the  river 
Saint  Louis.  Here  is  the  route  that  v/ould  be  followed: 
The  bark  would  be  built  on  Lake  Erie,  which  is  near  Lake 
Ontario;  it  would  easily  pass  from  Lake  Erie  to  Lake 
Huron,  v/hence  it  would  enter  Lake  Illinois.  At  the  end 
of  that  lake  the  canal  or  excavation  of  which  I have  spoken 
would  be  made,  to  gain  a passage  into  the  river  Saint 
Louis,  which  falls  into  the  Mississipi.  The  bark,  when 
. there,  would  easily  sail  to  the  Gulf  of  Mexico.” 


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